Warren v. Warren

• Decision Date: 10 July 1911
• Citation: 33 R.I. 71,80 A. 593
• Parties: WARREN v. WARREN.
• Court: Rhode Island Supreme Court

80 A. 593

33 R.I. 71

WARREN

v. WARREN.

Supreme Court of Rhode Island.

July 10, 1911.

Exceptions from Superior Court, Providence and Bristol Counties; Darius Baker, Judge.

Petition for divorce by Mary A. Warren against Edmund M. Warren. Judgment for plaintiff and defendant excepts. Exceptions overruled, and case remitted.

See, also, 79 Atl. 678.

Henry W. Hayes and Richard E. Lyman, for petitioner.

Irving Champlin, James Harris, H. N. Allin, and John Burke, for respondent.

SWEETLAND, J. This cause is a petition for divorce. The petition alleged among other grounds for divorce that the respondent has been guilty of the crime of adultery. The petition was heard in the superior court before Mr. Justice Baker. Said justice gave a decision for the petitioner on the ground of adultery. The cause is before us upon exceptions to certain rulings of the justice made during the trial, and to the decision of the justice granting the petition.

The respondent excepted to the rulings of the justice permitting counsel for the petitioner to ask certain leading questions of two of the petitioner's own witnesses and to cross-examine them, and also excepted to the action of the justice in interrogating one of these witnesses. There is no merit in these exceptions.

It was within the discretion of the court to permit the examination excepted to and also to interrogate the witness upon his own account in an attempt to ascertain the truth. Each of these witnesses, though called by the petitioner, showed themselves either to be hostile to her and deliberately withholding the truth or to be lacking in memory as to the matter of which they were being questioned. In either case the form of examination permitted by the justice was proper. Hildreth v. Aldrich, 15 R. I. 163, 1 Atl. 249.

The respondent excepted to three rulings of the justice presiding made during the examination of the witness Emily G. Rowe. The first one (numbered 19 of respondent's exceptions) appears to be entirely Immaterial. The other two, quoted below, related to the efforts of the witness to arrange an interview between the parties. This action at times was referred to by counsel for both parties as an attempt to arrange a settlement of the case, and that appears to have been its purpose. This matter, without objection, had been the subject of extended examination and cross-examination by counsel. It was late for either party to object on the ground that the matter was a negotiation for compromise. The whole subject of the attempted settlement clearly had no influence upon the final decision of the justice.

We find no reversible error in admitting the question in cross-examination: "What were you, in behalf of Mr. Warren, attempting to get a settlement for?" Nor in the exclusion of the question in redirect examination: "Was the question of this money settlement raised until all efforts, all your efforts, failed to get the divorce case settled?" We think, however, after the examination which had been permitted the court might well have allowed the latter question to be asked.

Counsel for the respondent called as a witness Edward D. Bassett, Esq., formerly attorney for the petitioner, and examined him with reference to certain alleged occurrences at the Benedict House, in the city of Pawtucket. In his direct examination the witness was asked the following questions, all of which the justice excluded on the ground that the answers must be based upon knowledge which the witness had acquired while acting as counsel for the petitioner: "Q. 13. Did you at any time make an investigation into the matter while you were counsel for Mrs. Warren?" We think that this question was improperly excluded. It does not call for the disclosure of information gained by the witness from confidential communications on the part of his client. It concerns the matter upon which he was employed by the petitioner, but his testimony in regard to it would involve no breach of confidence, and is not privileged. "Q. 14. As a result of any investigation made by you, or through your office, what action was taken by you with reference to prosecuting this case upon the basis of the Benedict House matter?" The only action which the witness would have had authority to take would necessarily involve consultation with his client and confidential communications between them. If this question calls for a statement of the witness' action with reference to proceedings in court, the record of the case before the court furnished ample evidence of that matter. We find no error in this ruling. "Q. 15. Did you, through any source, while acting for Mrs. Warren, get any knowledge with reference to the Benedict House matter, upon which you relied, acting in this case, with reference to eliminating that matter?" In the circumstance of the witness' relations with the petitioner, we think that the question should by its terms have excluded information obtained from Mrs. Warren. It also calls for the opinion of the witness as to value of the evidence regarding a certain part of the petitioner's case which, whatever may...