Purinton v. Purinton

• Decision Date: 19 March 1906
• Citation: 101 Me. 250,63 A. 925
• Parties: PURINTON v. PURINTON.
• Court: Maine Supreme Court

63 A. 925

101 Me. 250

PURINTON

v. PURINTON.

Supreme Judicial Court of Maine.

March 19, 1906.

Exceptions from Superior Court, Kennebec County.

Action by Lizzie M. Purinton against Humphrey Purinton.

Libel for divorce heard by the justice of the superior court, Kennebec county, in vacation with the understanding and agreement that each party should have all the rights of exception as if the case had been heard in term time. The charge in the libel was failure to support and cruel and abusive treatment. In his answer the defendant "denies every allegation laid in the libel of said Lizzie M. Purinton as cause for divorce and every specification offered therein under such allegations; and he also denies the allegation in the same libel that said Lizzie has been faithful to her marriage obligations ever since she became his wife, and charges that on the contrary during the same time, she has offered him extreme and continuous provocation, and that her conduct during the time aforesaid has been such as would have justified all that she charges or can truly allege against him, and that during the same time her conduct with relation to men other than her husband has been immodest, improper, scandalous, indecent, and criminal."

A divorce was denied. During the hearing, the defendant offered certain testimony which was admitted against the plaintiff's objection, and thereupon the plaintiff excepted. Exceptions overruled.

Argued before WISWELL, C. J., and EMERY, WHITEHOUSE, SAVAGE, POWERS, and SPEAR, JJ.

S. S. Brown, for plaintiff. Thompson & Wheeler, for defendant.

SPEAR, J. This case involves a libel for divorce and comes up on exceptions to the admission of certain testimony. The charges in the libel were failure to support, and cruel and abusive treatment. The answer of the libellee was a denial of every allegation laid in the libel as a cause for divorce and every specification offered therein under the allegations; and also a denial of the allegation in the libel that the libellant had been faithful to her marriage obligations ever since she became his wife, and charged that on the contrary during the same time she had offered him extreme and continuous provocation, and that her conduct during this time had been such as would have justified all that she charged or could truly allege against him, and that during the same time her conduct with relation to men other than her husband, had been immodest, improper, scandalous, indecent, and criminal. Among the witnesses called by the defendant was one James Colby, who testified that soon after the marriage of the parties he carried numerous letters between this libellant and one Frank Bartlett, for whom Mrs. Purinton had done housework before her marriage with the libellee, and that the libellant had often read aloud to the witness the contents of letters by said Bartlett to her, and by her to him, and the defendant's counsel asked the witness to give in testimony such portions of the letters so read or stated to him by the libellant as he could remember. No effort had been made by the libellee to procure the letters, and no notice had been given by the libellant to produce any such letters as she might have in her possession. The libellant's counsel objected to such inquiry, but the court allowed the witness to testify as to what was read or stated in them by the libellant. This ruling presents the first ground of exception.

The libellant claims that the letters themselves, if any such letters ever existed, were the best evidence of the contents of the letters, and that no secondary proof of their contents should be received, until it was shown that the libellee had made all reasonable effort to obtain the letters. In other words, that the evidence offered to prove the contents of these letters or any part of them fell within the usual rule relating to the proof of the contents of written instruments. But we hardly think this position is tenable.

The case shows, and the libellee contends, that this evidence was not offered to prove the contents of the letters, but the statements or admissions of the libellant herself as to some of the statements contained in these letters. Proof of her voluntary admissions against her own interest would clearly be admissible by the testimony of any competent witness who might have heard such admissions. We are unable to see why the source of her admissions, whether made by her as voluntary statements of her own, purporting to be quotations from memory, or to be read from some writing, should modify the general rule with respect to their proof. When one voluntarily and without solicitation reads the whole or a portion of a letter or writing to another, the party hearing does not undertake to repeat the contents of the original writing, but only what the person, purporting to read or state, has said. This is entirely different from an attempt on the part of a witness, who, having read a letter himself, undertakes to testify to its contents when the letter, of course, is the best evidence. But when a party voluntarily assumes to state what is in a letter, or to read a portion of a letter, to another, then such statement assumes the form of an admission by the party holding the letter, and testimony of such admission becomes primary evidence under the general rule with reference to proof of admissions. The testimony of Colby does not assume to give the legal effect of the letters, but shows to the extent of his recollection what was said by the libellant to have been their terms and import.

The libellee's legal position is fortified by authority as well as reason. 16 Cyc. 944, lays down this rule: "When it is sought to use a written statement as an admission the 'best evidence rule' so called, does not apply, and a copy of a letter, for example, is competent when identified without accounting for the original."

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