Sampson v. Sampson

• Decision Date: 06 April 1916
• Citation: 223 Mass. 451,112 N.E. 84
• Parties: SAMPSON v. SAMPSON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

223 Mass. 451

112 N.E. 84

SAMPSON

v.SAMPSON et al.

Supreme Judicial Court of Massachusetts, Hampden.

April 6, 1916.

Exceptions from Superior Court, Hampden County; George A. Sanderson, Judge.

Petition by Ida H. Sampson against Henry J. Sampson to set aside a divorce decree, to which Alice G. Sampson was allowed to intervene as a party defendant. Decree for the petitioner, and defendants except. Decree affirmed.

Jennings & Brayton, of Fall River, for petitioner.

J. W. & C. R. Cummings, of Fall River, for respondents.

RUGG, C. J.

This is a petition by Ida H. Sampson to set aside a decree nisi and a decree absolute entered in a libel for divorce brought against her by her husband, Henry J. Sampson. Thereafter, Alice G. Sampson was allowed to intervene as a party defendant. Their several demurrers present the first point to be decided. The petitioner avers in substance that she was lawfully married to Henry J. Sampson in 1903, and that thereafter until April, 1913, they cohabited together as husband and wife in Westport in the county of Bristol in this commonwealth; that in July, 1912, her husband entered in the superior court for the county of Hampden a libel for divorce, wherein it was alleged that his residence was in Springfield in this commonwealth, and her residence in Providence in the state of Rhode Island, and that she had deserted him in January, 1908; and that in October, 1912, a decree nisi was granted, which was made absolute in April, 1913; that all these allegations in the libel were false, as the libelant well knew, and that in truth the residence of both herself and her husband was in Westport, where at those times they were living in cohabitation as husband and wife; and that by fraudulent misrepresentations she was induced not to contest said libel and to believe that the proceeding had been discontinued, and that she did not know of the granting of the decree until after it had been made absolute.

[1] 1. An allegation that the petitioner did not receive notice of the libel was not necessary. The averment of fraudulent inducement by the husband not to contest the libel was enough. An inducement by fraud to abstain from defending oneself may be as harmful in its consequences as to accomplish the same end by fraudulent prevention or by violence. The essence of the ground for relief is a result accomplished by fraud.

[2][3] 2. The fraudulent representation, although not set out in the petition with technical precision, is in substance that the ‘libel proceedings had been discontinued and dropped.’ This is an allegation of specific fraudulent representations and is something more than a general unsupported averment of fraud, which standing alone would not be enough. Nichols v. Rogers, 139 Mass. 146, 29 N. E. 377;Butler v. McSweeney, 222 Mass. 5, 109 N. E. 653. It was not necessary to set out in detail all those misrepresentations. The continued cohabitation during the pendency of the libel may be treated as an act of misrepresentation to that end. If further particulars were deemed necessary for their defense by the respondents, a motion for specifications was their appropriate form of relief. Ford v. Ford, 104 Mass. 198.

[4] 3. It was proper at her own request to admit as a party to defend, Alice G. Sampson, who had joined in a marriage ceremony with Henry J. Sampson subsequent to the entry of the decree absolute in the libel for divorce and thereafter had cohabited with him as his wife. The present petitioner seeks no relief against her in this proceeding. Therefore, it was not necessary to insert any averments respecting her in the amended petition after she was admitted as a defendant.

[5][6] 4. Failure to allege in the petition that the superior court of Hampden county had no jurisdiction over the libel for divorce was not so essential as to be ground for demurrer. So far as that was relied on, it was an inference of law from the facts pleaded. Indeed, that as a bald proposition is not the single ground for relief. Facts sufficient to show a fraud upon the court are set out in the petition, and that, coupled with the invasion of the petitioner's rights by fraud, is the foundation of the petition.

[7] 5. Although advantage may be taken of the defense of laches, by demurrer when it appears on the face of the pleadings (Sawyer v. Cook, 188 Mass. 163, 168, 74 N. E. 356), a delay of about seven months after the granting of the decree absolute cannot be pronouncedunwarranted as matter of law (Rolikatis v. Lovett, 213 Mass. 545, 548, 100 N. E. 748;Albiani v. Evening Traveler Co., 220 Mass. 20, 26, 107 N. E. 406;Holbrook v. Brown, 214 Mass. 542, 101 N. E. 1087).

[8] 6. The petitioner testified without objection that on the last Sunday in July, 1912, her husband visited her, remaining two nights and a day, and that they had some talk ‘about the divorce case in Springfield, and that as a result of the talk less than a week later she went to Providence and got the letter containing the citation’ on the divorce libel. She was permitted to testify subject to exception that ‘as a consequence of that private conversation on the last Sunday in July, she didn't do anything about the divorce hearing after she got the letter containing the notice in Providence.’

It is a principle of the common law which is embodied in R. L. c. 175, § 20, clause first, that ‘neither husband nor wife shall testify as to private conversations with each other.’ That principle always has been declared and enforced by this court. Dexter v. Booth, 2 Allen, 559;Commonwealth v. Cleary, 152 Mass. 491, 25 N. E. 834;Fuller v. Fuller, 177 Mass. 184, 58 N. E. 588,83 Am. St. Rep. 273;Baldwin v. Parker, 99 Mass. 79, 83,96 Am. Dec. 697;Leland v. Converse, 181 Mass. 487, 63 N. E. 939. See 4 Wigmore on Evidence, §§ 2334 to 2340. But it never has been extended so far as to prevent the introduction of evidence to prove that there had been a private conversation. That fact, when competent, may be shown although the conversation itself may not be admissible by the testimony of either husband or wife. Proof of that fact is quite disconnected from any direct or indirect statement of the substance of the conversations.

[9] The petitioner, after receiving by registered mail at Providence notice that her husband had brought a libel for divorce in Hampden county, returnable in August, took no steps respecting it for more than a year. The motives which led her to this course of conduct were important as bearing upon the question whether she was barred by laches from maintaining the present petition. The operations of her mind and the reasons for her conduct were material. She was a competent witness upon this point. Knight v. Peacock, 116 Mass. 362;Toole v. Crafts, 193 Mass. 110, 78 N. E. 775,118 Am. St. Rep. 455;Carriere v. Merrick Lumber Co., 203 Mass. 322, 327, 89 N. E. 544. That one of the factors going to make up her motive for conduct was the fact of a private conversation was not an indirect method of proving the substance of that conversation. There is a plain line of demarcation between the occurrence of the fact of a private conversation between husband and wife, which may be competent, and a narration of the substance of that conversation by either of them, which is not competent. That line in the opinion of a majority of the court was not overstepped in the case at bar.

7. Exception was taken to this finding of the trial judge:

‘From her opposition to his divorce petitions in Washington, from her conduct toward her husband while the divorce proceedings in Springfield were pending, and from her conduct as soon as she learned that a divorce had been granted, the court finds that the respondent, Henry J. Sampson, in some form of words in private conversation with his wife, fraudulently represented to her that he had abandoned the libel for divorce begun in Springfield; that as a result of his conduct towards her and of his representations to her, the petitioner did not believe that the libel for divorce was going to be prosecuted by the respondent, Henry J. Sampson, and did not appear to oppose it; that she did not know that it was to be tried; nor did she know that a decree nisi or a decree absolute was entered until about the third week in October, 1913.’

It plausibly is urged in support of this exception that in effect this is a finding by inference as to what were the private conversations between husband and wife, and that, as direct evidence as to such conversations is incompetent (Leland v. Converse, 181 Mass. 487, 63 N. E. 939), the judge had no right under the law to find by inference what they were and base a conclusion thereon.

That statute simply provides that neither the husband nor the wife shall testify as to their private conversations. It does not exclude from the realm of evidence proof of acts designedly induced by those conversations and legitimate inferences as to the cause of such acts.

The fundamental issue was whether the petitioner voluntarily refrained from contesting the libel, or whether she was prevented by the fraudulent practices of the respondent from contesting the libel. That was the issue which the judge had to decide. The substance of his finding is that the respondent fraudulently prevented the petitioner from contesting the libel for divorce. The rest of the finding is subsidiary and ancillary to that main fact. Numerous incidents point to the exercise of some coercive power to overcome the free desire of the wife. There was evidence admitted without objection that the pending proceeding for divorce was the subject of conversation between the husband and wife. The judge might have found that the respondent sought the petitioner with the express design of urging deceitful representations. The statute does not prevent a court from exercising its sound judgment as to the influences which may have been exerted under the shelter afforded by such privacy, and from inferring that thus fraud had...