Sherwood v. Titman

• Court: Pennsylvania Supreme Court
• Writing for the Court: Thompson
• Citation: Sherwood v. Titman, 55 Pa. 77 (Pa. 1867)
• Decision Date: 25 March 1867
• Parties: Sherwood <I>versus</I> Titman.

Page 77

55 Pa. 77

Sherwood versus Titman.

Supreme Court of Pennsylvania.

March 13, 1867.

March 25, 1867.

March 13th 1867.

Before WOODWARD, C. J., THOMPSON, STRONG and AGNEW, JJ. READ, J., absent

Error to the Court of Common Pleas of Susquehanna county.

R. B. Little, for plaintiff in error, cited 2 Greenlf. Ev. § 57.

A. Chamberlain and W. H. Jessup, for defendant in error, cited Graham v. Wigley, 2 Roper on Husband and Wife 319; Headley v. Carter, 8 N. Hamp. 40; Story on Bailments 339; Tompkins v. Saltmarsh, 14 S. & R. 275; Catison v. Catison, 10 Harris 275; 2 Greenl. Ev. § 51; Shoemaker v. Livezly, 2 Br. 286.

The opinion of the court was delivered, March 25th 1867, by

THOMPSON, J.

The first assignment of error has reference to the admission on the trial below, of certain testimony offered by the plaintiff, of the conduct of the defendant, and his (the plaintiff's) wife, in June 1861. The objection was that it had already appeared by the plaintiff's testimony that he and his wife had separated in the month of April preceding; that they had ceased to live together; but there was nothing to show that either had relinquished his or her marital rights as against the other. There may be some ground to dispute whether, after a separation, in which the cause is the adultery of the wife, and she with her husband's wish and consent has left his bed and board and protection, he could maintain an action against one for debauching her. The loss of society and comfort enters so largely into the grounds of the action that respectable writers think he could not, although the marriage bonds remain unbroken in law; and there are opinions and analogies the other way. But we need not resolve this question in any particular way in order to sustain the ruling of the court in regard to this testimony.

The proof here shows an improper intimacy between the defendant and plaintiff's wife, for over a year prior to the separation. Its criminal character was denied and the truth of the witnesses, who gave to it other than an innocent meaning and aspect, disputed. After the separation, with less regard perhaps to appearances than before, they continued their intimacy, and thus their acts served to interpret their previous conduct; to render that which had been left doubtful, certain, in the minds of the jury. "When the fact of adultery is alleged to have been committed," says Greenlf. Ev., vol. 2, § 47, "within a limited period of time, it is not necessary that the evidence be confined to that period, but proof of acts anterior to the time alleged, may be adduced in explanation of other acts of like nature within that period." In Gardner v. Madeira, 2 Yeates 466, which was an action of crim. con., the court, on the point under consideration, said, "after laying a reasonable ground to infer an improper connection between the parties within the limited period, the court will be more liberal afterwards in receiving other evidence of indecent conduct at other times, tending to show the criminal views and acts of the parties." Somewhat analogous is the rule in slander, which permits proof of the speaking of the words after suit brought. The proof interprets the motive and the malice in speaking the words charged. Neither argument nor authority has been submitted by the able counsel who prepared the paper-book for the plaintiff in error on this point. With all proper respect for his opinion, his confident assertion of error in the ruling does not satisfy us. We think there was no error in it.

2. The second error is also without merit. The defendant had introduced testimony by the mouth of his own son, of what had been said and done between the plaintiff and his wife, on the occasion of the introduction of a person the witness had brought to plaintiff's house, at his request, as he testifies, to draw up an agreement of separation between...