Evans v. O'Connor

174 Mass. 287 | Mass. | 1899

Lathrop, J.

In these cases the plaintiff relied upon acts of adultery committed by the wife of the plaintiff with the defendant in the first case, in the years 1893, 1894, and 1895. The evidence as to the act in 1893 was as to one occasion only, and was very slight, though the evidence was abundant as to the acts of 1894 and 1895.

The first exception relates to the ruling of the presiding judge in regard to the right of the wife of the plaintiff to testify. She was called by the defendants, and desired to testify as to her relations with O’Connor in the year 1893, but not as to those in the years 1894 and 1895. She was instructed by the judge that if she testified as to matters in 1893, she could be cross-examined fully as to 1894 and 1895. The witness then declined to testify. We are of opinion that the defendants had a right to the testimony of the witness as to a distinct and separate transaction relied upon by the plaintiff, and that the witness ought to have been allowed to testify as to the year 1893, without waiving her privilege as to the years 1894 and 1895. Low v. Mitchell, 18 Maine, 372. In this case the law is thus stated by Mr. Justice Shepley: “ The rule, that a witness is not obliged to criminate - himself is well established. It is contended, however, that if the witness waives that privilege when testifying to one fact in the cause, he cannot claim it while testifying to any other fact material to the issue. If he consents to testify to one matter tending to criminate himself, he must testify fully in all respects relative to that matter so far as material to the issue. If he waives the privilege, he does so fully in relation to that act. But he does not thereby waive his privilege of refusing to reveal other unlawful acts, wholly unconnected with the act, of which he has spoken, even though they may be material to the issue. His consent to speak of one criminal act cannot deprive him of that protection, which the law affords him so far as respects other criminal acts not connected with it.” See also Lombard v. Mayberry, 24 Neb. 674, 690. If, however, within the legitimate limits of cross-examination as to the fact testified to, an inquiry is started as to other facts, the witness must be considered as having waived his privilege as to the latter so far as the inquiry as to them is within such limits, and he must answer even though his answers may tend to criminate him. We do not understand the ruling to have been thus limited by the presiding justice.

As the exception applies to both cases, the exceptions must be sustained in each case. It may be well, however, to say a few words on other points in the case. The jury were instructed that the basis of the action was the alienation of the wife’s affections. This question was fully considered in Bigaouette v. Paulet, 134 Mass. 123, where it was held that alienation of affections is not the gist of the action, but is merely a matter of aggravation; that the husband’s right of action is based upon his loss of consortium, — “ the right to the conjugal fellowship of the wife, to her company, co-operation, and aid in every conjugal relation.” We are of opinion, however, that this point is not open to the defendant Merrill. There was no instruction requested in regard to it, and the exceptions to the instructions given were only so far as they varied or modified the instructions requested. See Commonwealth v. Walsh, 162 Mass. 242; Fairman v. Boston & Albany Railroad, 169 Mass. 170, 174.

The second case was originally brought against both the defendants, and charges them with unlawfully conspiring together to debauch the plaintiff’s wife, and to induce her to commit adultery with the defendant O’Connor. During the trial the plaintiff discontinued as to O’Connor. Whether the plaintiff could recover against Merrill, under those circumstances, we need not consider, as no objection was made. See May v. Wood, 172 Mass. 11, 13, and cases cited.

Nor need we consider whether the evidence was sufficient to warrant the jury in finding against Merrill, as it may be different on another trial. Exceptions sustained.