208 Mass. 290 | Mass. | 1911
These are three libels for divorce before us upon the libellant’s exceptions to evidence.
1. One of the grounds alleged for divorce was adultery with one Whipple. The libellee admitted this, but alleged condonation by the libellant. In this state of the case, the libellant offered two letters written by the libellee at about the time of this admitted misconduct, tending to show an adulterous disposition on her part toward the co-respondent, which were excluded. The libellant’s exception to this ruling must be overruled. It was said by Chief Justice Gray in Dorr v. Tremont National Bank, 128 Mass. 349, at 360, “ Whether further evidence shall be received upon a point expressly admitted by the adverse party is wholly within the discretion of the judge presiding at the trial.”
2. The libellant sought to explain in "re-direct examination what he meant by the words “ contemplated reconciliation ” used in cross-examination as describing his state of mind and puipose in several meetings between him and the libellee, after a separation growing out of her misconduct, and her repeated expressions of penitence and appeals for forgiveness. These words were so plain in this connection that there could be no ambiguity or uncertainty in their significance. The witness did not express a desire to correct, withdraw or modify testimony
8. One of the grounds alleged for divorce was cruel and abusive treatment, which, it was contended, consisted in an attempt by the libellee to poison the libellant. The libellant testified fully as to his feelings and symptoms tending to show a poisoning, which came during a severely painful illness occurring soon after some attention from the libellee while he was recovering from a surgical operation. His attending physicians testified to their opinion of its cause. Thereafter the libellant called a nurse, a part of whose testimony was: Q. “ You did not attend Mr. Brown in his illness ? A. I didn’t attend him. — Q. Miss Brown was the nurse who was attending him at that time? A. Yes.” She was then asked, “ Did he describe to you at that time the symptoms which he felt ? ” and “ What evidence of pain or otherwise did you detect in him at that time ? ” These questions were excluded on objection, the presiding judge saying, “ There is no question made by the other side but that he had some sort of an upset after eating the orange, and that it injured the wound, and was a very serious thing, no question about that.” It is not clear whether the witness was not asked to repeat a narration made to her by the libellant of sensations after they had passed from him. If so they were incompetent. But passing this point, the language of the judge was a plain ruling that the evidence was rejected as being cumulative touching a fact which the opposing side admitted; and the judge had found in favor of the party proffering the evidence. This was proper practice and not open to exception. If the party offering the evidence had in mind any other ground upon which it was competent than that given by the judge, it became his duty then to offer to state it. He cannot now press its admission on a ground not suggested at that time. The fair implication from these circumstances is that the exception was taken to the ground of exclusion stated in the ruling. It is urged that the testimony was competent for the reason that the libellee had endeavored to show that the symptoms were a recent fabrication, and that therefore declarations similar to his testimony made at about the time the event occurred were admissible to support his credit as
The other exceptions have not been argued and are treated as waived.
Exceptions overruled.
