Pond v. Pond

Jan 31, 1882
Versions:132 Mass. 219
1882 Mass. LEXIS 54
Devens, J.

The exceptions to the rulings in this case upon the admission of evidence cannot be sustained.

1. Mrs. Phippen, the mother of the libellee, was called by her, and was a material witness. It is conceded that the record in the divorce suit in which Mrs. Phippen had been a party, which was offered by the libellant, was not admissible. Commonwealth v. Stevenson, 127 Mass. 446. But it is argued that, in order to discredit her and show a bias, it was competent to inquire of her whether in that suit the libellee had not been a witness on her behalf. It is ordinarily within the discretion of the presiding judge to determine to what extent the witness shall be cross-examined on facts otherwise immaterial, for the purpose of showing bias or want of credibility. Commonwealth v. Lyden, 113 Mass. 452, and cases cited. It was not illegally exercised in refusing to permit an inquiry, which, if answered in the affirmative, could have afforded only a very remote ground, if any, for attacking the credibility of the witness.

2. The statement of the witness Goodrich as to what was said by Goddard, her alleged paramour, not in the presence or hearing of the libellee, was correctly excluded. It was not a part of any act done by him, by which she could be affected without knowledge of or participation in it, and was not admissible as a part of the res gestae as tending to qualify it. Indeed, the act done consisted in the declaration itself, as it was a request by him that the libellee and .himself should have connecting rooms.

*223If it were proved that the parties had gone to the house for an improper purpose mutually agreed to, the evidence of what was said or done by one with the object of carrying out that purpose might be admissible, as it could be fairly inferred that it was said or done with the authority of the other. But it is impossible to infer such a purpose, and thus such authority from the other party, by the act of one, independently of such proof. Burke v. Miller, 7 Cush. 547. Nor can such acts or declarations be said to supply any deficiencies in the evidence of such a purpose. An agency cannot be proved against the principal by the declarations of the alleged agent. Haney v. Donnelly, 12 Gray, 361. Baker v. Gerrish, 14 Allen, 201. Had this evidence been received as the case stood, it would have been received upon the inquiry whether the parties had resorted to the house for an improper purpose, for which, as against the libellee, it was manifestly incompetent.

But the libellant presses most strongly the argument that it was competent to show the adulterous intent of Goddard, independently of the question whether the same evidence showed also that it was participated in by the libellee. That, in an indictment for adultery, or in proceedings similar to the one before us, evidence is admissible of improper familiarities other than those alleged between the parties, is settled. Commonwealth v. Merriam, 14 Pick. 518. Thayer v. Thayer, 101 Mass. 111. So evidence is admissible of declarations of one party made in the presence of the other which have the same tendency. Commonwealth v. Pitsinger, 110 Mass. 101. But such acts or declarations are admissible on account of the participation of the party therein, or presumable assent thereto. To allow one to be affected by proof of the adulterous disposition of another, might expose an innocent party to evidence which would be most dangerous in a trial, while it is conceded that, as affecting such party, it would be entirely immaterial, unless participation in it were proved. We are referred to no case in which such evidence, has been received as a detached and independent fact, and we are not disposed to lead the way in the direction of its admission.

Declarations or confessions of one party are inadmissible to affect the other, when not made in his presence nor communicated *224to him. Croft v. Croft, 3 Hagg. Eccl. 310, 318. Lawson v. State, 20 Ala. 65. For the same reasons, evidence of an adulterous disposition of one party should be excluded, unless it be directly connected with the conduct of the party sought to be charged with the offence.

3. The witness denied any recollection as to whether the door between the connecting rooms was or was not locked on the night in question. The libellant then offered evidence that the door was generally unlocked. This was rightly rejected. There was no offer of evidence of a uniform custom, and the mere fact that it was more generally unlocked than locked ought not to be admitted to affect the libellee upon the inquiry whether it was actually unlocked on the night in question.

4. The libellee testified, but Goddard was not produced as a witness. Interrogatories had been filed, a commission taken out, Avhich had not been returned, and an apparent attempt had been made to take his testimony. His evidence would either directly confirm or contradict hers, and a failure on the part of the libel-lee to produce his testimony, if she could procure it, would afford just ground for distrusting her own. It was competent for her to show that she neither knew where he was, nor could she obtain any information that he was where she could obtain his testimony. The statement that she had heard he was in Europe was not received as evidence that he was actually there, but only as tending to show that she had sought to find him, — that so far as she was informed he was out of the United States. Its only value was in relation to her good faith in having honestly endeavored to obtain his evidence.

Exceptions overruled.