Broderick v. Broderick

In September of 1915 appellant brought suit for separate maintenance of herself and minor daughter, alleging as the grounds of action failure to provide and extreme cruelty. In November of the same year she brought suit for divorce and custody of the minor children and all the community property upon the same ground. On motion of respondent these two causes of action were transferred from the county of Santa Clara to the county of Kings, and he answered in each action denying the allegations of cruelty and failure to provide. He also filed cross-complaints in each action, alleging extreme cruelty and adultery and praying, for a judgment of divorce/ These actions were by stipulation tried together on March 14, 1916; findings were made that it was not true that respondent was guilty of extreme cruelty or failure to provide; but the court did find

It is stated in appellant’s brief that “the paramount issue on appeal is as to the sufficiency of the evidence to support the findings as to adultery.” The evidence is fully set forth in the hill of exceptions and has been carefully read and considered by the court in the light of counsel’s able and earnest brief. No useful or proper purpose can be served by reproducing this evidence in this record. If the trial court believed, as it had a right to, the testimony of the witnesses Meyers, Mr. and Mrs. Martin, Mrs. Davis, Hiram Barton, and the respondent, and distrusted, as it had a right to do, the testimony of the appellant and her co-respondent Gatlin, there was an ample basis of sufficient proof to establish the court’s findings not only of adultery but also of extreme cruelty. While learned counsel vigorously attacks the veracity and character of some of respondent’s witnesses, even to the extent of going outside of the record, he does not gainsay the potency of the damaging facts to which they testify. [1] And even though it be conceded that the trial court in an action charging adultery should base its findings of guilt only upon evidence convincing to a moral certainty and beyond a reasonable doubt, it would still be the duty of this court to give at least the same weight to the findings of the trial court as it does to the verdict of a jury in a criminal case. As stated by Justice Henshaw in the case of People v. Durrant, 116 Cal. 200 , [ 48 Pac. 79 ] : “Upon a review of the evidence by this tribunal we may not examine with minute

The only contention counsel in his brief makes in regard to the finding of cruelty is that “the charges of cruelty are

The acts constituting cruelty as charged in respondent’s cross-complaint and found by the court are that on or about July 2, 1913, the appellant filed her complaint in the county of Glenn, falsely charging that respondent committed adultery with a woman in Los Angeles on April 23, 1913, and praying for a divorce and a division of the property; that she reiterated these false charges in letters to members of her family which were communicated to co-respondent; that in the spring of 1913 she permitted another man, over the objection of her husband, to occupy one of her rooms as a night lodger; that in July of 1914 she forbade respondent to call her “wife.” And as additional acts of cruelty, causing him. great mental anguish, respondent charges appellant with some of the same improper conduct with co-respondent Gatlin that he had alleged in his cause of action charging adultery.

As regards the suit commenced by appellant in Glenn County falsely charging respondent with adultery, respondent’s testimony in regard to the commencement and dismissal of this action and the charges therein is corroborated by the records of the county of Glenn showing the complaint with signature of respondent’s attorney, with the seal and jurat of the notary public to appellant’s verification of the complaint; also a telegram of appellant’s attorney authorizing the dismissal of her action. No objection to this evidence was offered except that it “was barred by sections 124, 125, 126 of the Civil Code.- ’ ’ There is also corroborating evidence that at the time of this action appellant was a resident of Kings County and went to Los Angeles not of his own motion or purpose but at the solicitation of his wife to come in pursuance of a telegram received by him from a stranger in Los Angeles by the name of Davis. This telegram was received in evidence without objection and corroborates the purpose and good faith of appellant’s visit to Los Angeles. In the case at bar the record conclusively absolves the parties of any desire or purpose to obtain a divorce by collusion. The record conclusively shows that each party is attempting to obtain for himself or herself and prevent the other from obtaining a decree

[3] Counsel contends that the complaint is stale as regards the alleged false charges of adultery in the Glenn County suit. A similar contention was made in the recent case of Neeley v. Neeley, 179 Cal. 232 , [ 176 Pac. 163 ], but in that ease our supreme court held as follows, in language which is quite applicable to the case at bar: “We should hesitate to say that an unexplained delay of three and a half years must, as a matter of law, be deemed unreasonable. But that is not the question here. The plaintiff’s failure to proceed earlier is fully accounted for by the dismissal of the prior action, and the conduct of the parties thereafter. (Civ. Code, sec. 125.) The plaintiff condoned the offenses of 1911, but under the agreement, as well as by the terms of the law itself (Civ. Code, sec. 117), the condonation carried with it the condition subsequent that the plaintiff should be treated with conjugal kindness. This condition was broken by the defendant in 1915, and the original cause of action thereby revived. (Civ. Code, sec. 121.) ” In the case at bar it is true that respondent lived with appellant as his wife up to August 5, 1915. But under the law this conditional condonation was revoked by the subsequent misconduct of the appellant with Gatlin, which caused, and was calculated to cause, respondent great mental suffering and of which he did not have knowledge until September 21 of 1915.

The appellant assigns as prejudicial error the overruling of her objection to the testimony pertaining to her relations with one John Hanford.

[4] This testimony was properly admitted because it was in direct response to and explanatory of issues raised by respondent herself in her complaint and in her own testimony. In her complaint filed in this action plaintiff charges that defendant “willfully inflicted upon her great and grievous

Learned counsel for appellant vigorously contends that the trial court erred in overruling appellant’s objection to the introduction in evidence as a part of appellant’s cross-examination of a letter written by her to the respondent in March of 1915, which contained, among other things, a request from appellant that he send her some money for hospital treatment in connection with a proposed abortion as well as money for other purposes.

The trial court evidently allowed this letter in evidence on cross-examination just as it allowed the above matters in regard to John Hanford, not for the purpose solely of proving respondent’s case, but as evidence tending to explain and qualify general testimony given by appellant herself in direct examination in support of charges made by her in her own

[6] Upon cross-examination she testified as follows: “In 1915 while in Los Angeles, I wrote home several times and asked for money. Q. Now, you say that you wrote to your husband and requested that he send you money when you were in Los Angeles in 1915; is that a fact? A. Yes, sir; I wrote him several times and asked for money. Q. In one of thes'e letters didn’t you write to him for money for the specific purpose of procuring an abortion? Mr. Biaggi: I object to that as not proper cross-examination. A. No, sir, I did not. ... I wrote the letter which you are showing me, inclosed it in an envelope, placed a postage stamp thereon, addressed it to my husband and deposited it in a mail-box in the city of Los Angeles.” The letter was then received in evidence, subject to the same objection, ruling, and exception, and, among other matters, stated: “Dear Ardy: Well, I am getting over the effects of my fall but I can never get over the

[7] Learned counsel for appellant have cited and quoted liberally from numerous well-established authorities. But the strongest of these go only to the extent of holding that testimony on cross-examination, however discrediting, is inadmissible only when it is entirely foreign to the case and in no way germane to the matters brought out on direct examination and is offered for the sole purpose and with the sole effect of discrediting the witness .or the party to the action. (See Sharon v. Sharon, 79 Cal. 632 , at page 674, [ 22 Pac. 26 , 131] ; Estate of James, 124 Cal. 653 , [ 57 Pac. 578 , 1008], and cases cited ; Short v. Frink, 151 Cal. 83 , [ 90 Pac. 200 ] ; People v. Schmitz, 7 Cal. App. 330 , 357, 360, 364, [ 15 L. R. A. (N. S.) 717 , 94 Pac. 407 ].) But rules of evidence are primarily rules of exclusion. And in this state from the beginning (Jackson v. Feather River Water Co., 14 Cal. 19 ). the rule has never been so applied even in criminal cases as to relieve a party when under cross-examination from his sworn obligation to tell the whole truth when it might in any degree tend to explain, qualify, or shed light on any relevant testimony given by him on his own direct examination. As

And the following cases from the federal jurisdiction further illustrate the extent to which the federal courts, in response to the demands of a progressive jurisprudence, are applying a rule conducive to the practical and effective administration of justice: Commercial State Bank v. Moore, 227 Fed. 19 , [ 141 C. C. A. 573 ] ; Le More v. United States, 253 Fed. 887 , at page 896 ; Diggs v. United States, 242 U. S. 470 , [L. R. A. 1917F, 502, 61 L. Ed. 442 , 37 Sup. Ct. Rep. 192 , see, also, Rose’s U. S. Notes]. See, also, State v. Carter, 21

[8] Counsel also/ contends “that the court erred in permitting Mrs. Gruwell and Mrs. Bice to testify as to the general reputation of appellant in Kings County.” It is true, as stated by counsel, that appellant “at the time of the trial and for more than three months prior to the commencement of the divorce action had been a resident of Santa Clara County.” But the evidence also shows that prior to that and for many years she and her family had, for the greater part of her life, lived in the county of Kings. And, as stated in People v. Cord, 157 Cal. 562 , [ 108 Pac. 511 ] : “It is a question for the court to determine whether or not general reputation in a place of former residence is too remote in point of time to be allowed in evidence. ” [9] However, when it seemed to appear upon cross-examination that the witnesses had never discussed her reputation “except in the family,” it might have been proper for the court, upon motion being made, to have stricken out the testimony of the witness. But no such motion was made.

The order denying the motion for a new trial and the judgments in each action are affirmed.

Burnett, J., and Hart, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on June 2, 1919, and the following opinion then rendered thereon:

We do not regard as material to the decision the portion of the opinion reading as follows: “Consequently, in this case at least, the reason of the rule requiring corroboration is much modified and a lesser degree and quantity of corroboration will be exacted (Blanchard v. Blanchard, 10 Cal. App. 203 , [ 101 Pac. 536 ] ; MacDonald v. MacDonald, 155 Cal. 665 , [ 25 L. R. A. (N. S.) 45 , 102 Pac. 927 ]),—and express no opinion thereon.

All the Justices concurred.