Russell v. Russell

• Decision Date: 05 December 1921
• Docket Number: 9934.
• Citation: 202 P. 711,70 Colo. 487
• Parties: RUSSELL v. RUSSELL
• Court: Colorado Supreme Court

202 P. 711

70 Colo. 487

RUSSELL v. RUSSELL

No. 9934.

Supreme Court of Colorado

December 5, 1921

Department 1.

Error to District Court, Las Animas County; A. F. Hollenbeck Judge.

Suit for divorce by Etta M. Russell against Hal D. Russell. Decree for defendant on his cross-complaint, and plaint, and plaintiff brings error.

Affirmed.

C. A. Irwin, of Denver, for plaintiff in error.

Hunter & Bell and A. W. McHendrie, all of Trinidad, for defendant in error.

ALLEN J.

This is a suit for divorce, instituted by the wife. The complaint charges cruelty. The defendant husband filed an answer denying the charge, and also a cross-complaint alleging cruelty and other grounds for divorce in his behalf. A trial to a jury resulted in verdicts for defendant as to issues relating to cruelty as raised in the complaint and cross-complaint, respectively, and also a verdict finding plaintiff not guilty of adultery as charged in the cross-complaint. Formal findings of fact and conclusions of law were duly filed, and, in accordance therewith, at the expiration of six months thereafter, a decree of divorce was granted in favor of the defendant. The plaintiff brings the cause here for review.

The first contention of the plaintiff in error plaintiff below, is that the verdict finding plaintiff guilty of cruelty is not supported by the evidence. The same contention is made with reference to the verdict finding defendant not guilty of cruelty. As to the issues involved in these verdicts, the evidence was conflicting, and as to each verdict we find from the record that there is sufficient evidence to support it.

It is next contended that there was prejudicial misconduct on the part of defendant's counsel in his cross-examination of the plaintiff, and that improper cross-examination was permitted over the objections of plaintiff's counsel. Where the matters now complained of relate to cross-examination for purposes other than to prove adultery they are not such as to warrant a reversal of the judgment. Rulings upon questions asked a witness on cross-examination although erroneous, will not constitute ground for reversal where no substantial prejudice results therefrom. 4 C.J. 968. Where the questions asked related to plaintiff's alleged adultery, they were not, when permitted, prejudicial to plaintiff, since the verdict of the jury found her not guilty of adultery. The same may be said with reference to the alleged misconduct of counsel for defendant in asking the plaintiff the following question:

'Would you be willing to have intreduced in evidence here a sworn statement by him (the alleged corespondent) relative to his relations with you here in Trinidad?'

The court sustained the objection to the question. However, complaint is made of counsel's remarks, in the presence of the jury, concerning the properiety of the question but, since the jury found for the plaintiff on the issue of adultery, no substantial prejudice resulted.

The plaintiff in error further contends that the court erred in refusing to give to the jury her requested instruction as follows:

'Mere refusal of a wife to cohabit with her husband does not constitute legal cruelty.'

Assuming that this instruction is not argumentative, it was appropriate under the pleadings and the evidence in the instant case, and under the rule stated...