Talley v. Talley
| Decision Date | 11 December 1905 |
| Docket Number | 103-1905 |
| Citation | 29 Pa.Super. 535 |
| Parties | Talley v. Talley, Appellant |
| Court | Pennsylvania Superior Court |
Argued October 5, 1905 [Syllabus Matter]
Appeal by respondent, from judgment of C.P. No. 5, Phila. Co.-1904 No. 12, on verdict for libelant in case of John E. Talley v Susan E. Talley.
Libel for divorce. Before Ralston, J.
At the trial the respondent made the following offer:
I offer to prove by two witnesses, who knew Mrs. Talley continuously up to the date of the trouble with her husband, that she had always borne a good reputation for virtue and chastity.
Objected to. The answer to said offer being as follows: Objection sustained Exception for defendant.
I offer to prove that the plaintiff, John E. Talley, on or about September 10, 1901, while living with the respondent as man and wife, committed the crime of adultery.
The answer to said offer being as follows:
The court, addressing the witness:
" Q. When did you know of this?
A. I knew from the condition of his clothes.
Q. When?
A. September 10.
Q. The same night?
A. Yes, sir.
Q. And you lived with him as his wife after that?
A. Yes, sir.
Q. For two years?
A. Yes, sir."
Offer objected to. Objection sustained. Exception for defendant.
Respondent presented these points:
11. If you believe, from the testimony, that the plaintiff, during the continuance of his married relations with the defendant, had been guilty of the like crime of adultery with which he has charged her in the libel filed, it is a good defense to this suit, and your verdict must be for the defendant.
Answer: The defendant's points are declined upon the ground that they are sufficiently covered in the general charge.
8. The two essential elements of the offense are, first, opportunity; and second, adulterous desire or inclination of the parties charged. If these two facts appear in conjunction, you are at liberty to draw an inference of adultery provided you are satisfied thereof by a preponderance of the evidence, and believe the testimony offered in support of the charge. Either of these two facts alone would not be enough to justify you in returning a verdict against the defendant, and if you find that either is absent, your verdict must be in her favor.
Answer: The defendant's points are declined upon the ground that they are sufficiently covered in the general charge.
9. Mere friendly, indiscreet or suspicious conduct does not sufficiently show the guilty desire. Such actions must be considered with reference to the ethical standards of the party's social equals. Appearances and circumstances equally capable of two interpretations should be decided in favor of the inference of innocence. Answer: Refused.
Verdict and judgment for libelant. Respondent appealed.
Errors assigned were rulings on evidence, quoting the bill of exceptions; above instructions, quoting them.
Reversed.
Louis B. Runk, with him John R. Read, Silas W. Pettit and H. B. Gill, for appellant. -- The court erred in refusing to permit witnesses to testify on behalf of the respondent as to character: O'Bryan v. O'Bryan, 13 Mo. 16; Clement v. Kimball, 98 Mass. 535; Marble v. Marble, 36 Mich. 386; Derby v. Derby, 21 N.J.Eq. 36, 39; Noel v. Noel, 24 N.J.Eq. 137, 140; Thomas v. Thomas, 51 Ill. 162; Hilker v. Hilker, 153 Ind. 425 (55 N.E. 81); DuBose v. DuBose, 75 Ga. 753; Engleman v. Engleman, 97 Va. 487 (34 S.E. 50).
In Pennsylvania the right to offer evidence relating to character in a divorce suit has never been passed upon before so far as the reports show, but such evidence is admissible in other civil actions where character is directly in issue from the nature of the action, e. g.: Libel, Henry v. Norwood, 4 Watts, 347; Defamation, Conroe v. Conroe, 47 Pa. 198; Moyer v. Moyer, 49 Pa. 210; Breach of promise, Van Storch v. Griffin, 71 Pa. 240; Drown v. Allen, 91 Pa. 393; Glace v. Hummel, 24 Pa. C.C. 550; Hurtzig v. Hurtzig, 44 N.J.Eq. 329 (15 A. 537); Hickerson v. Hickerson, 52 S.W. 1019; Helmes v. Helmes, 24 Misc. 125 (52 N.Y.S. 734); Winston v. Winston, 165 N.Y. 553 (59 N.E. 273).
The learned judge, who tried the cause, erred in refusing to permit testimony to be given to prove that the plaintiff, John E. Talley, had committed the like crime of adultery: Costello v. Costello, 191 Pa. 379; City of Pittsburg v. Kalchthaler, 114 Pa. 547; Bronson v. Bronson, 7 Phila. 405; D'Aguilar v. D'Aguilar, 1 Hagg. Eccl. 773; Beeby v. Beeby, 1 Hagg. Eccl. 789; Peck v. Peck, 44 Hun, 290; Clapp v. Clapp, 97 Mass. 531; Morrison v. Morrison, 62 Mo.App. 299; Lawlor v. Lawlor, 76 Mo.App. 637; Tracey v. Tracey, 43 A. 713; Keats v. Keats, 1 Sw. & Tr. 334; Cameron v. Cameron, 42 Tenn. 375; Dismukes v. Dismukes, 1 Tenn. 266.
The learned judge who tried the cause, erred in refusing the defendant's eighth point: Brown v. Brown, 63 N.J.Eq. 348 (50 A. 608); Berckmans v. Berckmans, 17 N.J.Eq. 453; Yocum v. Yocum, 3 Pa. Dist. 615; Inskeep v. Inskeep, 5 Iowa 204; Berckmans v. Berckmans, 16 N.J.Eq. 122; Conger v. Conger, 82 N.Y. 603; Mayer v. Mayer, 21 N.J.Eq. 246; Jones v. Jones, 18 N.J.Eq. 33; Osborn v. Osborn, 44 N.J.Eq. 257 (9 A. 698).
Avery D. Harrington, with him Herbert M. Boyer, for appellee. -- It has been held, not only in Pennsylvania, but in other states and in England, that direct evidence is not necessary to sustain the charge of adultery: Hurtzig v. Hurtzig, 44 N.J.Eq. 329 (15 A. 537); Loveden v. Loveden, 2 Hagg. Con. 1; Matchin v. Matchin, 6 Pa. 332; Wilson v. Wilson, 154 Mass. 194 (28 N.E. 167); Daily v. Daily, 64 Ill. 329; Jayne v. Jayne, 5 Misc. 307 (25 N.Y.S. 810).
The court did not err in refusing to admit testimony to the effect that the libelant had always borne a good reputation for virtue and chastity: O'Bryan v. O'Bryan, 13 Mo. 16; Dudley v. McCluer, 65 Mo. 241; Engel v. Dressel, 26 Mo.App. 39; Home Lumber Co. v. Hartman, 45 Mo.App. 647; Porter v. Seiler, 23 Pa. 424; Ins. Co. v. Hazen, 110 Pa. 530.
The court did not err in refusing to permit the respondent to give testimony that the libelant had committed the like crime of adultery, respondent having lived with libelant as his wife for a period of two years after her knowledge of the alleged adultery on the part of the libelant: Keats v. Keats, 1 Sw & Tr. 334; Bronson v. Bronson, 7 Phila. 405.
Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
This was a libel in divorce a. v. m. on the ground of adultery, the issue being made by an answer on the part of the respondent denying the charge and demanding a jury trial. Before trial and verdict the respondent filed a supplemental answer, by leave of court, setting up the adultery of the libelant during his marital relations with her as a statutory defense and demanding a jury trial as to the additional issue thus joined, but the court refused to allow any evidence to be given in support of this charge. The result of the trial was a verdict in favor of the libelant, and a final decree in divorce having been granted the respondent appealed to this court.
The record contains five quite lengthy assignments of error, but they can all be considered under three heads: (1) the refusal of the court to hear testimony as to the respondent's character for virtue and chastity; (2) the refusal of the court to admit testimony that the libelant had committed the crime of adultery during the term of his marital relations with the respondent; and (3) whether the learned trial judge failed in his charge to adequately instruct the jury on the law as raised in the respondent's eighth and ninth points.
At the trial counsel for the respondent offered to prove by two witnesses, who knew Mrs. Talley continuously up to the date of the trouble with her husband, that she had always borne a good reputation for virtue and chastity. This offer was objected to and the court sustained the objection and allowed an exception to the respondent. It must be conceded that this question is not without difficulty. The action in divorce grounded on adultery is said to be a civil action, yet it partakes very largely of the nature of a criminal prosecution.
In Garrat v. Garrat, 4 Yeates 244, Yeates, J., in pronouncing the opinion of the court in regard to a charge of adultery in a divorce case, said: " I perfectly concur in opinion with the judges who tried the issues in this libel, that it would be highly dangerous to the citizens in general if they were compelled to answer to criminal charges without being informed of the specific offenses against which they were called upon to defend themselves.
" Common sense is in unison with the constitution when it declares that, in all criminal prosecutions, the accused hath a right to be heard by himself and counsel, and to demand the nature and the cause of the accusation against him." There we find a plain declaration to the effect that an action for divorce founded on a charge of adultery is a criminal charge or prosecution.
In Matchin v. Matchin, 6 Pa. 332, Gibson, C. J., said (p. 336): " A libel for divorce is said to partake of the nature of a criminal proceeding, but the primary intent of it is undoubtedly to keep the sources of generation pure, and when they have been corrupted, preventative remedy is to be applied without regard to the moral responsibility of the subject of it." This was said in reference to an action in divorce founded on adultery, and it is another declaration of our Supreme Court that such action is of the nature of a criminal proceeding.
In 1 Greenleaf on Evidence, sec. 54, it is said: ...
To continue reading
Request your trial
-
McCommon v. Johnson
...evidence of good repution is not admissible, under the rule in Pennsylvania: Insurance Company v. Hazen, 110 Pa. 530, 1 A. 605; Talley v. Talley, 29 Pa.Super. 535." As record does not present a direct or indirect attack upon the reputation of the defendant, the testimony was properly reject......