110 A. 455 | Conn. | 1920
Lead Opinion
The record presents two questions for our consideration. Upon the first of them, we think the trial court correctly held that the finding of intolerable cruelty on the part of the defendant was warranted by the evidence before the committee. Cruelty includes any wilful act of a human being which inflicts unnecessary pain. Webster's Dict., Verb. So persisted in as to become "intolerable and to render a continuance of the (marriage) relation by the suffering victim impracticable," it grows into a ground for divorce.Morehouse v. Morehouse,
From the evidence before him the committee might have found that the defendant on many occasions choked the plaintiff, — sometimes so violently as to *62 cause her much suffering, and to leave both a soreness of the throat and the humiliation of tell-tale marks upon the skin; that this conduct was accompanied by acts and language indicating his infatuation for other women, and an apparent desire to provoke his wife into leaving him because he was tired of her; that it was practically continuous or recurrent at short intervals for a long period before the final separation of the parties, and injuriously affected her health. This was quite enough to warrant the conclusion of the committee.
The remaining ground of appeal deals with the question asked of Miss Atwood, and the trial court's treatment of the committee's admission of it as harmless error. Neither the question nor the mere "yes" which answered it and closed that line of examination, — as our inspection of the unprinted evidence discloses, — comes within any exception to the hearsay rule recognized in our practice, and the defendant's objection should have been sustained. A reference to the record clearly shows, however, that its admission cannot have harmed the defendant, and for these reasons: Another witness for the plaintiff, her mother, had already testified to having been told by her that the defendant choked her. This came in without objection, and in the course of the defendant's subsequent examination by his counsel his attention was called to the mother's statement and he was asked whether he had ever choked his wife. He said that "in a playful way" he had, — a sort of confession and avoidance that at once rendered harmless Miss Atwood's answer to the single inadmissible question that had been asked of her. Her testimony had been definitely limited by the committee to the simple fact of a communication by the plaintiff that chokings had occurred, — whether in outbursts of playfulness or *63 otherwise, it did not appear, since Miss Atwood was in effect forbidden to say whether the plaintiff had enlightened her as to the quality of the husband's conduct attending the performances. The husband's answer, therefore, admitted the truth of everything which the committee, by his own expressed restriction, was warranted in gathering from Miss Atwood's testimony, and the trial court properly disregarded the error as one which did not harm the defendant.
Our conclusion necessarily disposes of the claim for a correction of the finding, which is without merit.
There is no error.
In this opinion PRENTICE, C. J., BEACH and GAGER, Js., concurred.
Dissenting Opinion
The evidence of intolerable cruelty was confined to the period subsequent to the death of defendant's father, February 16th, 1918, and prior to the date when plaintiff left defendant's house, December 5th, 1918.
Mrs. Jacobs testified as to the period prior to the father's death as follows: "Q. During all that time, that two years and more, up to the time of the elder Jacobs' death, you and your husband got along pretty well? A. Yes. Q. And you had nothing to find fault with until this change after his father's death? A. Well, nothing serious to find fault with."
In March, 1918, defendant hired a cottage at the shore for his wife and purchased an automobile for her use. In April they took a pleasure trip to New York, and about July 1st, 1918, Mrs. Jacobs moved to the cottage at the shore and remained there up to sometime in the following September. The defendant twice remained over night at the cottage, otherwise he was not there. In June, 1918, the plaintiff brought *64 this action for divorce. Mrs. Jacobs lived in the homes provided for her by her husband until she left his house, December 5th, 1918; the defendant occupied the homes with her except that he was at the shore cottage but twice. From the middle of April, 1918, they did not cohabit.
The witnesses for the plaintiff as to acts of cruelty and conduct of intolerable cruelty were the plaintiff, her mother and her grandmother.
This summary, fragmentary as it is, will indicate that the proof was not disinterested in character, or broad in its extent or in the period of time it covered. It was all flatly and fully contradicted. There are many features of this testimony, apart from the fact that it was generously contradicted, which leave the mind somewhat incredulous of its credibility, and longing for the word of some disinterested and impartial witness.
One witness who was not related to the plaintiff was permitted to testify that Mrs. Jacobs, the wife, communicated to her the fact that her husband was choking her from time to time. The majority opinion concedes, without argument, the inadmissibility of this evidence as hearsay, but holds that its admission was harmless error. The trial court so held, and argued that it could not have influenced the committee because plaintiff's attorney observed to the witness as she was leaving the stand, "You apparently don't know much about the case."
The majority opinion is unable to accept this reasoning, and adopted a theory new to the case, and that is that the defendant had admitted the choking and hence no harm was done if a statement of what Mrs. Jacobs had said about acts of choking were admitted. The theory of the court seems to be that since this was an admitted fact in the case, corroboration of it by inadmissible evidence was inconsequential in its effect. *65
This certainly does a grievous injustice to the testimony of Mr. Jacobs. At all times he denied every act of physical cruelty, and his counsel, in the 425 pages of the transcript, furnished conclusive evidence that neither they nor their client admitted the charge upon which the action for divorce rested. But let Mr. Jacobs' own words settle the point. "Q. Now, Mrs. White, on page 53, testified that Mrs. Jacobs told her that you had choked her, and that was before they went to the shore, and afterwards. Now, in the first place, did you ever choke Mrs. Jacobs? A. In a playful way I have acted the choking, but I have never in my life tried to choke Mrs. Jacobs, and I doubt very much if there was ever a time when I was playing that there was the least slight mark on her neck, in any way, shape or form. Q. You have never choked Mrs. Jacobs in a fit of passion and made scratches and marks upon her throat which caused her pain? A. No, sir. . . . Q. Ever strike your wife in Mrs. White's presence? A. I never struck my wife. Q. Either in her mother's presence, or not in her mother's presence? A. Neither way. I have never struck my wife." The defendant's denials were explicit and repeated.
The further suggestion of the court that the communications to Miss Atwood may have related to instances of playful choking and hence were harmless, I fear, does not quite interpret Miss Atwood's testimony nor fully do justice to the purpose of plaintiff's counsel. They introduced the evidence in order to prove that the wife did communicate this fact to Miss Atwood. In my opinion this inadmissible testimony cannot be held to have been disregarded by the committee in forming his conclusion that the defendant had been guilty of acts of intolerable cruelty as alleged. *66