Drew v. Drew

Rugg, C.J.

This is a libel for divorce brought in the Probate Court. St. 1922, c. 532, § 7. Report was made by the judge under the procedure outlined in G. L. c. 215, §§ 9, 11, 12. In general that accords with equity practice. G. L. c. 214, §§ 19, 23. Churchill v. Churchill, 239 Mass. 443, 445 . By G. L. c. 208, § 33, the course of proceedings in divorce, unless otherwise specially prescribed, conforms “ to the course of proceedings in ecclesiastical courts or in courts of equity.” Friedrich v. Friedrich, 230 Mass. 59, 61 . Ames v. Hold, 214 Mass. 77 . Greenia v. Greenia, 206 Mass. 449 . Patterson v. Patterson, 197 Mass. 112, 118 . The case as matter of practice is before us properly.

*44 The causes of divorce alleged in the libel are (1) that the libellee has been guilty of cruel and abusive treatment of the libellant, (2) that the libellee has contracted gross and confirmed habits of intoxication, and (3) that the libellee, being of sufficient ability, has grossly or wantonly and cruelly refused or neglected to provide suitable maintenance for the libellant.

The report of the judge narrates briefly salient facts of the married life of the parties and concludes with a finding that the charges of the libel are not sustained by the evidence and that, after the filing of the libel, the libellant had condoned the alleged marital wrongs. A decree was entered dismissing the libel. The appeal of the libellant brings the case here.

The general finding against the libellant, having been founded on oral testimony presented by witnesses in person, will not be reversed. It cannot be pronounced plainly wrong. The evidence was conflicting respecting the several causes alleged in the libel. It was for the trial judge to determine where the truth lay, having in mind the burden of proof resting upon the libellant. His determination must be accepted in these circumstances as final. Freeman v. Freeman, 238 Mass. 150, 161 .

No question is open concerning the sufficiency or nature of the answer. Arguments upon that point need not be considered. There is nothing to indicate any erroneous ruling of law in this connection by the trial judge. French v. French, 14 Gray, 186 . Newman v. Newman, 211 Mass. 508, 511 .

There was evidence tending to show that the libellant had freely and voluntarily written and signed a letter addressed to one who was then her attorney, directing him to cause to be dismissed an earlier libel brought by her, in which were statements tending to contradict her testimony given at the trial; that she showed this letter to her husband; that she and her husband went with this letter to the office of his attorney, where she handed it to his attorney, by whose typist it was copied, and that the original thereafter was returned to the libellant. The attorney to whom it was *45 addressed testified that he was unable to find the original letter and the libellant denied that she wrote such a letter. The copy was rightly admitted in evidence. It was not a privileged communication with either her attorney or her husband because, if the testimony was believed, the original and the copy were shown by her to third persons. This destroyed her privilege concerning it. Temple v. Phelps, 193 Mass. 297, 304 . Sampson v. Sampson, 223 Mass. 451, 458 . Lyon v. Prouty, 154 Mass. 488 .

A copy was properly admitted in evidence after production of the original had been shown to be impracticable. Williamson v. Cambridge Railroad, 144 Mass. 148 .

The copy was admissible in evidence because of its tendency to affect the credibility of the testimony of the libellant. It was not competent as proof of irrelevant facts therein stated and there is nothing in the record to indicate that it was used for that purpose. There was no request to limit its effect. Where evidence is admissible on any ground, the objecting party must clearly specify incompetent ends for which it may be considered and ask for definite instructions in order to save a valid exception. A party is not commonly required without request by the court to state in advance the purpose for which evidence is offered.

Condonation is a state of mind to be determined upon all the evidence, including rational inferences. A single act of intercourse between the libellant and libellee is not necessarily condonation of previously existing grounds for divorce. Gardner v. Gardner, 2 Gray, 434 . It cannot be said as matter of law that, under the conditions which might have been found, that act in the case at bar did not have that effect. Rogers v. Rogers, 122 Mass. 423 . Koffman v. Koffman, 193 Mass. 593 .

There was no error in restricting the time as to which evidence should be received in support of the alleged causes for divorce. No time was specified in the libel.

No other arguments of the libellant require discussion. No reversible error is disclosed.

Decree affirmed.