88 Vt. 126 | Vt. | 1914
The ease was tried on a declaration in two counts, alleging alienation of affection and criminal conversation. The. plaintiff testified that she was married to George H. Frederick, her claimed husband, at Hoosick Falls in the State of New York, on the 29th day of November, 1905, by W. O. Jones, a justice of the peace. She offered no eye-witnesses of exchange of consent or marriage ceremony, except her own testimony. The plaintiff then produced a certificate of marriage corresponding to this testimony, and introduced competent proof of the signature. The plaintiff also testified to cohabitation subsequent to the marriage ceremony. The plaintiff introduced one Byers, a resident of Hoosick and a relative of Jones, who testified that in New York justices of the peace were elected early in November every two years; that J ones had two terms; that he was acting as a justice in the latter part of November, 1905, and that he
It is true that reputation and cohabitation are not competent proof of a marriage in actions for criminal conversation; Northfield v. Vershire, 33 Vt. 110; and that a marriage certificate, however complete and formal, does not prove itself. State v. Horn, 43 Vt. 20. But the plaintiff’s testimony to the performance of a marriage ceremony and subsequent cohabitation was admissible in connection with the production of a marriage certificate with proof of the official signature, if there was competent evidence of the authority of the person signing. The testimony of Byers was sufficient proof of the official character of Jones. Evidence that one is reputed to be and has acted as a justice of the peace is prima facie proof that he was regularly appointed to that office. State v. Abbey, 29 Vt. 60, 67 Am. Dec. 754. So the question of proof turns upon the competency of the evidence received to show that justices of the peace in New York have authority to celebrate marriages.
It was said in State v. Rood, 12 Vt. 396, where the validity of a New York marriage was in question, that it was not necessary that tbe law be proved if it was known to the court at the trial, or if it was known to the Supreme Court to be as decided on the trial. This pronouncement was repudiated in State v. Horn, 43 Vt. 20. That was a trial for bigamy; and a paper purporting to be a certificate of a marriage performed in Pennsylvania by a justice of the peace was received in evidence, without any showing that there was a man bearing the.name affixed to the certificate who was a justice of the peace, or that by the laws of Pennsylvania a justice of the peace had authority to solemnize marriages. As to the second objection the court said: ‘ ‘ The laws of other states, when material to the merits of. a case, can
This was the definite adoption of one of two rules, each of which has the' support of excellent authorities. Some of the states hold that statute laws may be shown by the testimony of persons found competent to testify regarding them. But most of them require the production of the statute. See 2 Wig. §1271, n. 4. This seems to be the rule of the United States Supreme Court. Pierce v. Indseth, 106 U. S. 546, 27 L. ed. 254, 1 Sup. Ct. 418. We are not indifferent to the arguments made in support of the more liberal rule, but the decision in State V. Horn has been the law of this State for over forty years, and we think that if a change is to be made it should be effected by legislative action.
But if we were to adopt the other rule, it would not avail the plaintiff upon the record submitted. If we treat the admission of the evidence as a finding of competency, it must be said that there was no evidence to support the finding. The only evidence of qualification was the statement of the witness that he knew that marriages were performed in New York by justices of the peace. If the exercise of an official function can be accepted as proof of a statutory authority, it must be something more than its exercise in a single instance or by a single person. It has recently been held in Rhode Island, with reference to parol evidence of the statutory provisions of another state, “that courts should not admit in evidence and treat as correct the testimony of a witness as to such provisions, without examination as to his qualifications, and solely on the authority of his statement that he knows the laws of another state.” O’Donnell v. Johnson, 90 Atl. 165, 167.
Witnesses who had noticed a change in the conduct of the plaintiff’s husband towards her, were permitted to testify to subsequent changes in the appearance and conduct of the wife indicative of mental distress. These matters were objected to as self-serving evidence, and for want of any allegation of special damage. It is well settled that symptoms of mental suffering may be shown by observers whenever the fact is material. Kidder v. Bacon, Vt. 263, 275, 52 Atl. 322. No special allegation was needed to make this evidence admissible. In estimating the
The house where the defendant lived was a short distance from and in sight of the mill operated by the plaintiff’s husband. The plaintiff was permitted to show that there were occasions when Frederick was wanted at the mill and could not be found there, and that on such occasions the whistle would be blown to call him, and that he would be seen coming from the direction of the defendant’s house. The evidence was objected to as immaterial. It is argued that the admissibility of the evidence must depend upon some showing connecting the defendant with these occurrences; and that it did not appear that the defendant was in the house at these times, or that she heard or knew of the blowing of the whistle, or that Frederick came from her house. The exceptions state that there was no direct evidence of these matters, and the whole transcript of the evidence bearing upon this question is referred to for the purpose of showing the circumstances tending to connect the defendant with them. Nothing which purports to be a transcript of all the evidence bearing upon this' question has been submitted to us. The only questionable feature of the evidence, upon the case as it stands, is that it stops short of showing that Frederick came from defendant’s house; and it may easily be supposed that the testimony covered circumstances which tended to show that Frederick came from the house as well as from the direction of the house. The defendant fails to show error.
It appears that the defendant did some business in carrying people for hire. A witness produced by the defendant, who had testified in direct examination that she had seen the defendant carrying plaintiff’s husband a great many times, but had seen nothing more than their riding together, — was permitted to testify in cross-examination, against the defendant’s objection, that she had told the plaintiff about having seen the defendant riding with plaintiff’s husband, and had talked it all over with her, and that it was their usual conversation when riding together on three specified occasions. The ruling of the court was, “allowed in cross-examination under defend
The plaintiff was permitted to testify in rebuttal that before her husband went -away she knew of his having quite a large sum of money; that she had known him to have at each pay day large rolls of bills; that on the last pay day, about two weeks before he left, he was paid $500, and that he gave her only enough of it to cover the bills over Sunday. This was objected to as not rebuttal, the defendant having offered no evidence on the subject. The defendant claimed that the suit was brought and prosecuted in pursuance of a collusive understanding between the plaintiff and her husband; and this evidence was received as bearing upon the question of collusion, under an offer to show, further that on the day Frederick left he drew from the bank the entire balance of his account, and left debts amounting to about $1,000; and that the plaintiff had made an agreement with an attorney for the creditors by which her mill was to be put to work to pay this indebtedness, and afterwards to be returned to her. We think the evidence objected to, with that offered in connection with it, tended to show that the plaintiff was not acting in collusion with her husband, and was therefore properly received in rebuttal.
The exceptions taken to the instructions of the court regarding proof of marriage are sufficiently disposed of by what has already been said.
The court charged in substance that if the jury found the fact of an adulterous disposition, and the opportunities to commit adultery which the evidence tended to establish, and were satisfied from these facts that sexual intercourse was had on any of these occasions, the plaintiff could recover under the second count, unless the jury found that she was willing that her husband should have criminal conversation with the defendant and consented to the act of intercourse. This instruction was excepted to, but we think it was correct and adequate. The defendant also excepted to the failure to charge that if the plaintiff had knowledge of the adulterous disposition of the defendant and of her intent in connection with Frederick, and then continued to live with him, that would operate as a condonement. and should at least go to mitigate the damages. The refusal to give this instruction was not error.
Judgment reversed and cause remanded.
