Opinion
11-26-1902
SEELEY v. SEELEY.
E. A. Higbee, for petitioner.
(Syllabus by the Court.)
Action by Theresa G. Seeley against Charles G. Seeley for divorce. Petition dismissed.
E. A. Higbee, for petitioner.
MAGIE, Ch. The petition in this case bases the right of petitioner to a decree of divorce upon a constructive desertion of her by her husband, the defendant. The charge in the petition is that by reason of his failure to provide her a suitable home in accordance with his means, and because of his extreme cruelty, whereby the health and life of the petitioner were in danger, she was obliged to leave him. No defense having been presented, the usual order of reference was made. The master's report was in favor of a decree of divorce. An examination of the proofs taken by the master and returned with his report has required the conclusion that the report cannot be confirmed.
It is elementary law with us that a decree of divorce will not be made on the uncorroborated evidence of a petitioner. If the law were otherwise, and if this court could dissolve a marriage upon the uncorroborated testimony of one who seeks sucn relief, it would be doubtful if a case for relief would be made out on petitioner's testimony. To sustain her charge of cruelty, petitioner testified that having been married on February 17, 1897, her husband on July 22d following, she being then pregnant, attempted to produce an abortion upon her by violence and against her consent, with the result that on the next day she was prematurely delivered of a child, which is yet living. The act of defendant was not only a gross violation of his duty to petitioner, but was also a detestable crime. Yet petitioner did not complain of his criminal conduct, nor did she then leave the defendant. She further testified that, after the birth of that child, defendant attempted to kill it, and threatened to do so. Nor did she then leave the defendant. On the contrary, she continued to live with him as his wife until January 25, 1898. She then left him, and has continued since to live apart from him. When the master asked petitioner to state the cause of her leaving him at that time, this was the answer made: "Things had been unbearable so long I couldn't stand it any longer, so I left at that time, because just along at that time he had been going out at night; and, if I would ask him where he was going, he would tell me, none of my business. If I would ask him when he would be home, he would say maybe he would go to hell; he didn't know where he would go. And I asked him for a morning paper on the day I left. I didn't expect to leave just then. And I went in and asked for a morning paper, and he said he had nothing to give me, and I asked him to sell me one, and he said he didn't have anything to give or sell me. And then I was broken down in health, and at that time I thought 1 was pregnant,—for this other child I had; and he said, 'If you ever have another child,' that he would perform an abortion, the same as he did once, and I was afraid to tell him. I was afraid of my life. He told me that he would kill me, or kill the child; and so, altogether, I had to come home." If the examination had terminated at that point, it is obvious that the testimony would not have justified the conclusion that petitioner had left her husband because of any then attempted violence endangering her life or health, or that she had grounds for apprehension of immediate violence. In the list of causes stated, most of which were of trivial character, and insufficient to make her leaving him a desertion by him, was one relating to threats by him that if she became pregnant he would perform an abortion upon her. There is nothing to indicate that the threats were then made, for she did not then tell him of her belief that she was then pregnant, because she feared to do so. But on January 25, 1898, she could have had no assured ground for believing that she was then pregnant, because her second child was not born untilOctober 19, 1898. On January 25th the present or apprehended danger was no other or greater than had existed from the time of the alleged attempt at abortion or murder. But the examination was continued and conducted in a manner which deserves criticism. After the master had properly asked petitioner to testify to the cause of her leaving her husband, and she had responded by enumerating a number of causes, mingling together those which were trivial and that which was substantial if proved, he permitted her counsel to elicit evidence from her by prolonged and repeated questionings of a leading and suggestive character, which culminated in this extraordinary question, "Then do I understand that this cruelty and abuse of you was so great that you were obliged to take your child and leave him in order to save your life and the child's life?" to which question the petitioner naturally answered, "Yes." In actions for divorce which are undefended, a peculiar responsibility is imposed on the court. Such a proceeding deals with a personal relation of vast importance, not only to the parties, but to the public. A decree dissolving the marriage tie will not be made by the consent or acquiescence of the parties. If no defense is interposed, there is no decree pro confesso, but the matter is referred to a master, as a judicial officer of the court, with direction to ascertain and report as to the truth of the charges made in the bill or petition, with his opinion thereon. To enable him to perform that duty, the party seeking divorce is ordered to take depositions and other evidence before the master to prove such charges. Before the master, sitting for the court, the solicitor should produce his witnesses, and examine them in accordance with the ordinary rules. If the master discovers that a witness is inclined to evade disclosure of truth, I have no doubt that it would be his duty to search the memory and conscience of the witness by questions of a leading character, and this because of the interest of the public in such a cause. But where a petitioner or a complainant is a witness it is an abuse of the solicitor's privilege to elicit from his client evidence touching the very crux of the case by suggestion. Such a course may well be rebuked by the master, and evidence so elicited should be accorded but little, if any, weight. In no case could the rule requiring corroborating evidence in support of petitioner's testimony be more properly applied than in one of this character. Petitioner's charge is based upon an alleged criminal act of her husband in attempting abortion, the result of which was a premature birth, due to his act. Some corroboration might be derived from the doctor who attended petitioner, or those about her at the time of her delivery. No person was called or examined upon that matter. An examination of the testimony discloses absolutely no corroborative evidence. The testimony of petitioner's mother that the petitioner's first-born child, seen by her some four or five days after birth, was small and apparently of premature birth, is not corroborative of the acts which underlie the petitioner's claim,—the criminal conduct of defendant in connection with the birth of that child. Petitioner's evidence of the horrible crime charged against defendant stands wholly without support from other evidence, and the case clearly showed that other evidence was available.
The result is that the report of the master should not be confirmed, and the petition should be dismissed.