Kelly v. Kelly
Kelly v. Kelly
Opinion of the Court
Opinion by
This suit for divorce on the ground of desertion was begun on July 16,1909, and it was alleged in the libel that the desertion took place on July 8, 1907. In her original answer, respondent denied that she willfully and maliciously deserted the libellant on the date named or at any time, without just cause, and alleged that the libellant treated her in a cruel and barbarous manner, and that he offered such indignities to her person as to render her life burdensome and condition intolerable, and thereby forced her to withdraw from his house and family. Later the respondent, by leave of court, amended her answer by adding the charge of adultery, and, on the trial before a jury, was permitted still further to amend by adding the allegation that her withdrawal from the home of the libellant was induced by his conduct, was by and with his consent, and was connived at and encouraged by him.
The fact that the respondent withdrew from the libellant’s house on July 8, 1907, was undisputed, and the principal question raised on the trial was as to the allegations set up in the last amendment to the answer. In his general charge, as well as by his affirmance of respondent’s points, the learned judge instructed the jury that, if they found that the libellant consented to her withdrawal, then she was not guilty of desertion such as would entitle him to a divorce. The verdict óf the jury in favor of the libellant implies a negation of the allegation of his consent. No part of the charge is assigned for error, but it is argued that, by the rulings made on the trial, evidence was excluded, which, if it had been admitted, might have changed the result.
In order to a full understanding of some of these rulings it is important to notice that, in November, 1907, the
Referring now to the assignments of error specifically, we remark, with regard to the first assignment, that there was no error in the ruling at the time it was made, and that, after the answer was amended, the libellant was fully cross-examined upon the subject referred to in this assignment.
The second and fourth assignments may be considered together. They relate to respondent’s offers to cross-examine the libellant “as to his conduct toward, and treatment of, his wife immediately after the time she left their home,” and to prove in chief “the manner in which Doctor Kelly treated his wife for years prior to her withdrawal from his home.” The ostensible purpose was to show the libellant’s consent by his conduct. For the reasons already suggested, the offers were not admissible for any other purpose, and, in order to confine the evidence
It appears, by the third assignment of error, that it was proposed to ask the libellant the following question on cross-examination: “At one of those talks (with Mr. Harris) just shortly before she left your home, didn’t you tell him that you would get a divorce on some ground, that your wife was too delicate a woman for you, and that you would prove her crazy if necessary?” This was objected to as not cross-examination and as incompetent under the pleadings. We cannot say that the second objection was good. Such a declaration, though not made to or in the presence of the respondent, would tend to show the libellant’s desire and willingness to be separated from his wife, which facts, though not of themselves tantamount to giving consent, were nevertheless relevant to the issue. But the first objection seems to have been well taken. Moreover, the respondent was in no wise
All the assignments of error are overruled and the decree is affirmed.
Reference
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- Syllabus
- Divorce — Desertion — Cruel and barbarous treatment — Consent to separation — Res adjudicata. 1. Where a libel for divorce a mensa et thoro by a wife against her husband charging cruel and barbarous treatment is dismissed, and thereafter a libel is filed by the husband against the wife for divorce alleging desertion, and the wife in her answer alleges cruel and barbarous treatment as the ground for her withdrawal from her husband, such a defense cannot be considered, inasmuch as it is res adjudicata by the former suit; but the record of the former suit will not prevent her from setting up as a defense that her husband consented to her withdrawal. Such consent cannot be set up as “ reasonable cause” for the separation, but it is recognized by the authorities as a fact that repels the presumption that the separation was a willful and malicious desertion. 2. In the trial of such a case the court must restrict the evidence as to the conduct of the libelant towards his wife to such only as bears upon the question of consent. For this reason a preliminary offer should be required as to what are the specific acts or conduct which the respondent proposes to prove as evidence of consent. 3. Declarations by the libelant made immediately before the respondent withdrew from him tending to show the libelant’s desire and willingness to be separated from his wife, cannot be brought out on the cross-examination of the libelant. They may, however, be brought out in the respondent’s own case, as bearing upon the question of consent; and if they are thus shown, respondent has no standing to complain of a ruling which prevented their being developed on the cross-examination of the libelant. 4. An offer of evidence should aver with reasonable distinctness and certainty the facts which are necessary to show that it is admissible; otherwise the time of the court might be wasted in an examination which could come to nothing, or perhaps would divert the attention of the jury from the point in issue, and the appellate court would not be able to say that the rejection of the offer caused any injury.