Pond v. Pond

• Decision Date: 31 January 1882
• Citation: 132 Mass. 219
• Parties: James B. Pond v. Isabel S. Pond
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

132 Mass. 219

James B. Pond v. Isabel S. Pond

Supreme Court of Massachusetts

January 31, 1882

[Syllabus Material]

Suffolk. Libel for divorce, alleging that the libellee committed adultery at Providence, Rhode Island, on September 1, 1880, with one Jones, and at White River Junction Vermont, on November 1, 1880, with one Goddard. Trial in this court before Field, J., who allowed a bill of exceptions, in substance as follows:

On the question whether the libellee committed adultery with Jones, Mrs. Phippen, the libelle's mother, was a material witness in her favor. On cross-examination of the mother, she was asked whether her former husband, Marshall S. Stone, had not obtained a divorce from her for adultery, and whether the libellee was a witness for her in the trial of such case. The judge, upon objection of the libellee, excluded these questions. The libellant then offered in evidence the record of this court in a libel for divorce of Marshall S. Stone, at March term 1858, against the witness, for the purpose of showing the facts referred to in the first question. The judge excluded the record.

In support of the second charge in the libel, the libellant offered evidence tending to prove that the libellee was at Montpelier, Vermont, on November 1, 1880, as a member of a company which had been giving concerts for several weeks; that on that day she suddenly left the company, which was engaged to give a concert at Rutland that evening, and in the evening took a train for Boston, by way of White River Junction, in company with Goddard; that they left the train at White River Junction at about two o'clock A. M., and went to a hotel and occupied connecting rooms. The libellant offered in evidence the night clerk at the hotel, who assigned the parties to their rooms, and who testified that Goddard and the libellee came into the hotel together, and that the latter stood at the foot of the staircase about ten or fifteen feet from the counter where Goddard registered both of their names. The libellant asked the following question: "Did either Mr. Goddard or Mrs. Pond, if so, which one, say anything to you about what rooms they wanted? If so, state what was said." The answer was, "Yes, sir; Mr. Goddard called for connecting rooms." To the admission of this question and answer the libellee objected in general, and on the ground that she was not within hearing of this conversation. The judge ruled that anything said by the libellee herself, or said in her presence or hearing, or afterwards communicated to her, was admissible; but found as a fact, upon this evidence, that she was not within hearing of the conversation, and excluded the testimony, against the exception of the libellant.

The libellant also asked the witness the question, "Was the door between the two rooms locked or unlocked when you went into them that night?" To which the witness answered, "It was generally kept unlocked." The judge ruled that, upon the question whether the door was unlocked on the night inquired of, proof that it was generally kept unlocked was not material, unless it was shown that it was uniformly so kept, and excluded the answer. The night clerk did not remember whether the door was locked or unlocked when he entered the rooms that night, and did not remember whether he looked to see. He also testified that he first conducted Goddard to room No. 1, leaving the libellee in the hall, and afterwards conducted her to room No. 2. The chambermaid of the hotel testified that, early in the morning, after Goddard had left the house, she found the libellee in bed in room No. 1. The libellee denied that she occupied the room with Goddard, or that she committed adultery. She testified that she was conducted to the first room they reached, and shown into it before Goddard was assigned any room; that she had no knowledge as to what room was assigned to Goddard; that she occupied the room to which she was assigned, and did not leave it after she was assigned to it; and that the room in which she was seen by the chambermaid was the one to which she was originally assigned.

During the direct testimony of the libellee, she testified that she had not seen Goddard since that night but once, and that was in New York, when she met him in the street. Her counsel then asked her, "Have you any knowledge or information of Mr. Goddard's whereabouts?" The libellant objected to so much of the question as called for anything except the witness's personal knowledge, but the judge permitted the question to be put, and the witness answered, "I have heard that he has gone to Europe." The libellant excepted to the allowance of the part of the question above referred to, and to the answer. Goddard was not a witness on the trial. The libellee had filed interrogatories and taken out a commission to take Goddard's evidence, but the commission had never been returned.

The judge directed a decree to be entered dismissing the libel; and the libellant alleged exceptions.

Exceptions overruled.

R. M. Morse, Jr. & H. L. Harding, for the libellant.

S. Lincoln, (T. F. Nutter with him,) for the libellee.

Devens, J. Lord, Field & C. Allen JJ., absent.

OPINION

Devens, J.

The exceptions to the rulings in this case upon the admission of evidence cannot be sustained.

1. Mrs Phippen, the mother of the libellee, was called...