Lyon v. Prouty

Morton, J.

The defendant contends that the evidence relating to the conversation between the plaintiff and his wife should have been excluded, and that the plaintiff connived at *490 the intercourse between the defendant and the plaintiff’s wife, and cannot now recover damages for such intercourse. We do not understand him to rely upon any other grounds for setting aside the verdict. The exception taken to the refusal of the court to rule, as requested by the defendant, that, if the husband and wife were living in a state of separation, the action could not be maintained because of criminal connection alone, has not been argued to us, and we therefore treat it as waived.

1. The answer was merely a general denial. It did not set up connivance. The attention of the court does not appear to have been called during the trial to that ground of defence. No instructions or rulings were asked or exceptions taken concerning it, and the trial appears to have proceeded on wholly different grounds. Even if the question of connivance was open to the defendant under the general denial contained in the answer, it was not raised; and it is well settled that questions upon which no ruling was asked or exception taken at the trial cannot be considered upon a defendant’s bill of exceptions, unless it appears, upon the conceded facts, that there is an objection to the plaintiff’s recovery which cannot be removed by further proof, or unless it appears that, from a mistake, or misapprehension, or misapplication of legal principles, the case has resulted in a mistrial. Slater v. Rawson, 1 Met. 450 . Bond v. Bond, 7 Allen, 1 . Draper v. Saxton, 118 Mass. 427 . Goodnow v. Hill, 125 Mass. 587 . This case does not come within either of these exceptions.

2. The circumstances surrounding the conversation between the plaintiff and his wife are not very fully disclosed. It does not appear whether the door was open or shut between the room where the plaintiff and his wife and daughter were, and the adjoining room in which the defendant was, nor in what part of the adjoining room the defendant was. For aught that appears, the door might have been opened, and the defendant might have been where he could readily hear what was said by the plaintiff to his wife. In view of what had passed previously between the plaintiff and himself, and the occasion of the plaintiff’s being there at that time, and of his going away, this would seem to be not improbable. It does appear, however, that the conversation took place in the presence of the plaintiff’s daughter, then a girl of fourteen. The conversation *491 does not seem to have been of such a character that she could not have heard it. Nothing shows that she would not have been competent as a witness to it. The subject of it was a matter in which she naturally would be interested, and which naturally would attract her attention. There is nothing to show that she was not attending to it. The case differs widely from Jacobs v. Hesler, 113 Mass. 157 , and we think the testimony was rightly admitted. We do not understand that conversations between husband and wife in the presence and hearing of a third party are to be excluded because confidential. Nothing in this case shows, however, that the conversation was confidential.

Exceptions overruled.