Ford v. Ford , 104 Mass. 198 ( 1870 )

Chapman, C. J.

The libel alleges that the libellee “ has been guilty of extreme cruelty towards her, (the libellant,) and particularly on the 23d day of September last inflicted upon her person blows, and then and there did divers other acts of extreme cruelty, to her great injury.” In the ordinary language of pleading, this amounts to a specification'of the infliction of blows, on a single occasion, under such circumstances and in such a manner as to constitute extreme cruelty. The parties went to trial before the jury upon this allegation and its denial; and the libellant was permitted to offer evidence of the infliction of blows on a single day, and of all the circumstances that occurred on that day, relating as well to the temper, language and manner of the libellee, as to the infliction of the blows. But evidence of previous similar, independent instances of ill treatment and misconduct on other occasions was properly excluded as an independent ground of divorce, because it was not pertinent to the issue which the libellant had chosen to offer by her allegations. The cause could not be tried upon allegations not made. It would not be in conformity with the rules of pleading, nor just to the libellee, who was entitled to have the matters relied upon set forth, at least by some general allegations, so that he could be prepared to meet them. If the allegations had been general, he might have moved for specifications, if necessary - but as the allegations were limited to a single specified act, he needed no further specifications, and was bound to meet merely that charge. As tending to show the animus and the j ostile state of feeling on the part of the libellee, and as affecting his conduct in evidence on the particular day named, we think the judge had discretionary power to exclude it. Apparently the proof of previous similar ill treatment and misconduct, in instances not alleged might be very prejudicial to the libellee, without giving him any opportunity to be prepared to meet it.

As the daughter Elizabeth had testified against the libellee, he had a right to prove that she testified under a bias, by proving what remarks she had made about him. Day v. Stickney, 14 Allen, 255. But proof that he had previously committed an assault and battery upon her would not tend to disprove the bias, and would merely introduce a collateral matter not pertinent to the issue. Such evidence was properly excluded.

As to what Ayling had said, the presiding judge had a right to know what the party proposed to prove, in order that he might judge of its pertinency; and such statement not being made, he properly excluded the evidence.

How far cross-examinations shall be extended into collateral matters depends so much upon the special circumstances of each case that a large discretion must be intrusted to the presiding judge. The cross-examination of the libellee must be like that of any other witness in this respect. The limitation of the cross-examination of the libellee in this case was of this character, as it related merely to collateral matters; and we cannot say it was erroneous.

The letter written by the libellant to the libellee after their separation, consisting, as it did, of her accusations against him, and of a proposition to agree on terms for a final separation, could not be evidence for her. It was inadmissible, upon the plainest principles of law.

The motion to amend was addressed to the discretion of the presiding judge, and his decision was not subject to exception.

The instructions to the jury were right. The question before them was, whether the libellee had inflicted blows upon the libellant, on a single occasion, which were such as to constitute extreme cruelty. The instruction that there must be personal violence, intentionally inflicted, and that it must be of such a character as to endanger the life, limb or health, or as to create a reasonable apprehension of such danger, was correct. Th jury have found that there was no such violence.

Libel dismissed.