Fitzgerald v. Williams , 148 Mass. 462 ( 1889 )

C. Allen, J.

The defendant testified that he had the power to remove priests for misconduct, and he assumed the burden of showing misconduct on the part of the plaintiff. It thus became a material question whether the plaintiff had been guilty of misconduct in visiting the house of ill-fame for an improper purpose. The plaintiff admitted that he had been there, but asserted that his visit was for a proper purpose, namely,, to look after his nieces, of whom he was the moral protector. The defendant thereupon sought to show that he was not then acting as their moral protector, that his testimony in this respect, was untrue!, and that he had been guilty of improper conduct towards one of his nieces. In order to show this, he was allowed to put in the testimony of a witness, Kennedy, to a conversation in June, 1884, which was long after the misconduct charged upon the plaintiff, at which the plaintiff, three of the nieces,-the, witness Kennedy, and one other person were present, in which one of the nieces said that the plaintiff took her out of her bed and into his own. This being merely a declaration by her to him, it would be competent in evidence only on the ground that there was an admission by him of its truth. But the witness testified that the plaintiff denied it. He said, “ I made a statement, he denied it, and she reiterated it.” His denial must be considered as going to the truth of the statement made by both. Now, assuming that it was open to the defendant to show that the relations oí the plaintiff to his nieces was not that of their moral protector, this method of showing the fact was not competent, because there was no admission by the plaintiff of the fact charged. Commonwealth v. Kenney, 12 Met. 235. This testimony would apparently injure the plaintiff’s case, and because of its admission we feel constrained to grant a new trial.

It is true, the plaintiff on cross-examination had denied that one of his nieces had denounced him as having accomplished her ruin, or that Kennedy had threatened to denounce him for having seduced her; but this was a collateral matter, and it Was not competent to introduce the testimony merely for the purpose of contradicting that denial, nor has its competency been urged on that ground.

The testimony of the witness Hart to the plaintiff’s acts in the same house of ill-fame five months before the misconduct charged upon him by the defendant was competent. The plaintiff had testified that his first visit to that house was about the middle of September, 1883, and that he went there without knowledge of the character of the house, and for an innocent purpose. Upon these material matters, the testimony of Hart had a tendency to contradict him; and in these aspects it was certainly competent. We need not go further, and consider whether in a case of this kind the testimony was not competent on more general grounds, as tending to show other misconduct, unfitting the plaintiff for his priestly office, of the same kind and at the same place specified by the defendant, though not upon the same day.

Exceptions sustained.