Stewart v. Stewart

• Decision Date: 30 March 1911
• Docket Number: No. 21,684.,21,684.
• Parties: STEWART v. STEWART.
• Court: Indiana Supreme Court

175 Ind. 412

94 N.E. 564

STEWART

v.STEWART.

No. 21,684.

Supreme Court of Indiana.

March 30, 1911.

Appeal from Circuit Court, Gibson County; H. C. Clements, Judge.

Action by Bertha S. Stewart against William H. Stewart. From a judgment for plaintiff, defendant appeals. Affirmed.

John W. Brady and O. M. Welborn, for appellant. Thomas Duncan and J. M. & S. L. Vandeveer, for appellee.

MORRIS, J.

Appellee sued appellant for divorce and alimony. The complaint charged the husband with cruel and inhuman treatment by, among other things, striking and beating her, and falsely and maliciously charging that she was an unchaste woman. There was an answer of general denial, and trial and judgment in favor of appellee, awarding divorce and decreeing her alimony in the sum of $7,866, and the further sum of $500 for her attorney's fees. From this judgment appellant appeals. His motion for a new trial, overruled by the court, assigns 21 reasons therefor.

One of the causes was the alleged error of the trial court in sustaining an objection to the following question asked the plaintiff on her cross-examination as a witness in her own behalf: “I will ask you if during your married life you have not frequently accused your husband of misconduct with other women?”The court sustained appellee's objection because it was not cross-examination. It is not error to restrict the cross-examination to the subject-matter of the original examination. Patton v. Hamilton (1895) 12 Ind. 256;Eacock v. State (1907) 169 Ind. 488, 82 N. E. 1039;Hunsinger v. Hofer (1887) 110 Ind. 390, 11 N. E. 463;City of Aurora v. Cobb (1863) 21 Ind. 492. While on cross-examination any fact tending to impair the credibility of the witness by showing his interest, bias, ignorance, motive, or character may be shown, the extent to which such examination may be carried is within the sound discretion of the trial court. Dotterer v. State (1909) 172 Ind. 357, 88 N. E. 689, and cases cited. In this case appellant could not have been harmed by the ruling anyway, because, after the controverted ruling was made, the same questions were asked the witness, and answered, without objection. Beatson v. Bowers, 91 N. E. 922.

One Lounsdale, witness of appellee, was asked if he ever saw appellant make any demonstration towards her son, Warner. Appellant objected to the question, but stated no ground therefor. The objection was overruled, and after two other questions were asked and answered appellant made a motion to strike out the answer. The motion was overruled. There was no error in this. It was the duty of counsel to state the ground of objection to the question before the court made the ruling. Cleveland, etc., R. Co. v. Wynant (1893) 134 Ind. 681, 34 N. E. 569;Ginn v. State (1903) 161 Ind. 292, 68 N. E. 294, and cases cited.

The eighteenth reason assigned for a new trial is the alleged error in admitting in evidence certain testimony of Mrs. Wilson, appellee's witness. No objection was made to the question eliciting the testimony.

Another of the grounds for a new trial was the action of the court in permitting the following question to be answered by witness Phillips, over the objection of appellant: “Whether you had a conversation with Dr. Stewart relative to extending credit to his wife?” Answer by witness: “My recollection is that he did, some time ago.” The answer did not disclose any fact harmful to appellant.

It is insisted the trial court erred in permitting appellee to testify that the rental value of her dwelling house was $20 per month. No objection was made to the question which elicited the information. The record discloses a like failure to object to the question complained of, which was asked of appellee's witness Skeavington.

Objection is made that appellee was erroneously permitted to prove by one Ed. Stewart that certain writing on a card was in the handwriting of appellant. If there was error, it was harmless, for afterwards the appellant testified that the handwriting was his.

One of the grounds specified in the motion for a new trial and discussed in the argument in appellant's brief was the erroneous admission in evidence, over appellant's objection, of certain testimony of one George Moore. The error, if any, was waived by appellant's failure to note it in the statement of points in his brief. Rule 22 of this court (55 N. E. v).

Counsel for appellant most earnestly contend that the decision of the trial court is not sustained by sufficient evidence, and is contrary to law. The evidence given at the trial disclosed that the parties were married in 1870, when appellee was 19 and appellant 27 years of age. He was a physician, and engaged in active practice until 1891. After that he was engaged in farming and merchandising until about 1902, since when he has not been in any active business. Six children were born to them, two of whom are dead. The other four are married. The youngest child, a daughter, 27 years old, lived on a lot adjoining the place of residence of these parties. The final separation occurred on July 16, 1909. On that date, appellee left home, and went to her daughter's residence, about 50 feet away, and has since resided there. The husband stayed in the family residence, with one of the sons. The parties had during their married life quarreled frequently, and had separated on two or three occasions. One time appellant, after a quarrel, left home, and remained away about six months. At another time he went to Florida, and stayed three or four months. Both parties were high tempered, and in their frequent quarrels the wife was not afraid to uphold her side of the controversy, and at times both exhibited unjustifiable anger. The husband never struck the wife but once, and that was 23 years ago, and the evidence would not warrant the conclusion either that the wife did fear or had reason to fear that he would inflict bodily injury on her. Twenty-five or 30 years before the final separation, the wife accused her husband of marital infidelity. Her suspicions on which she based the accusation were groundless, but some indiscreet conduct on his part might be said to excuse the wife. During the last 25 years she had not charged him with such infidelity. About a month after the separation, and three months before appellee filed her complaint for divorce, a number of cards were placed in...