Hooper v. . Hooper , 165 N.C. 605 ( 1914 )

Hoke, J.,

after stating the case: Our statute on divorce contains provision as follows:

Revisal 1905, e. 31, sec. 1564: .“The material facts in every complaint asking for a divorce shall be deemed to be denied by the defendant, whether the same shall be actually denied by pleading or not, and no judgment shall be given in favor of the plaintiff in any such complaint until such facts shall have been found by a jury, and on such trial neither the husband nor wife shall be a competent witness to prove the adultery of the other, nor shall the admissions of either party be received as evidence to prove such fact.”

And the chapter on evidence, ch. 34, sec. 1630, making parties competent and compellable to give their testimony in a cause, closes with restrictive words: “Nothing in this section shall be construed to apply to any action or other proceeding in any court instituted in consequence of adulteiy, or to any action for criminal conversation.” And in section 1636, referring to causes in which a husband or a wife may be competent and compellable to give their evidence, the same restriction again appears as follows: “Nothing herein shall render any husband or wife competent or compellable to give evidence for or 'against each other, in any criminal action or proceeding (except to prove the fact of marriage in case of bigamy), or in any action or proceeding in consequence of adultery, or in any action- or proceeding for divorce on account of adultery (except to prove the fact of marriage), or in any action or proceeding for or on account of criminal conversation.”

These regulations, which _ have long existed in this State, express the settled purpose of 'our Legislature that, in actions for-divorce on account of adultery, neither the husband nor the wife shall be competent or, compellable to give evidence which fixes or tends to fix either with adultery, and the inhibition extends to any and all admissions or confessions by the other, of like teiior, either in the pleadings or otherwise. Perkins v. Perkins, 88 N. C., 41; Hansley v. Hansley, 32 N. C., 506.

True/-in the case of. Broom v. Broom, 130 N. C., 562, the statute was 'held.not to apply where a wife was offered for the sole purpose of denying the statement of third persons, witnesses, as to specific acts of adultery on her part, but the restriction undoubtedly exists, and, extends, as stated, to any and all testimony by either the husband or the wife which has a tendency to establish the adultery of the other.

The legislation is based upon the gravest reasons of public policy and, as stated in the authorities cited, is designed; not ■only to prevent'collusion where the same exists, but to remove the opportunity for it.

In Perkins’ case, supra, divorce was sought on the 'ground that the wife had contracted the disease of syphilis and communicated it to her husband, and declarations were offered on the part of the wife tending to show'that she had contracted the disease -from a third person while her husband was absent in South Carolina, accompanied by proof that the “man in the case” had the disease. There was no suggestion or claim of actual collusion, but the admissions were rejected, and Ruffin, J., in delivering the opinion, on this subject, said: “Indeed, tbougb not entirely apparent, we cannot avoid an impression, arising out of the statement of the case itself, that, as-it was, he succeeded in getting before the jury much testimony which properly should have been excluded. His own physical condition and exemption from secret disease at the time of his return from South Carolina were so peculiarly within his own knowledge, and so difficult of knowledge by another, that it seems impossible to doubt that he was, himself, permitted to testify directly to those matters; and if so, it was improperly done, since those facts were intended to be used, and were used, as links in a chain of circumstances 'to convict the defendant of the adultery alleged in the complaint- — of which there seems to have been literally no direct proof.

“Be this, however, as it may, there can be no question in the minds <jf the Court as to the propriety of excluding the testimony with reference to the admissions of the defendant. The provision of the statute is so pointed and its language so plain — that in such trials neither the husband nor the wife shall be a competent witness.to prove the adultery of the other, nor shall the admissions of either be received as evidence to prove such fact — as to leave no room for doubt or construction. This prohibition, as has been often said by the Court, proceeds out of that regard which the law always has for good morals, and that interest which society has at stake in the preservation of the marriage relations of its members, seeing that they are not only essential to social order, but that they constitute the foundation of society itself, and it is the duty of the courts to see that neither this policy of the law nor public interest is impaired through the collusion of the parties, and in fact that it shall not even encounter the risk of being so impaired: for, as said in Hansley v. Hansley, 10 Ired., 506, this policy of excluding the admissions of the parties depends, not so much upon the ground that there is collusion between them, as upon the danger that there may be.”

A perusal of this testimony of plaintiff will show that much of it had a direct tendency to establish adultery on the part of tbe wife. Indeed, there is doubt if, without it, the evidence was sufficient to carry the case to the jury, and, under our authorities, the testimony should have been excluded. ■

It is contended that the objection referred to is not open to defendant, for the reason that the record discloses no exception made to the testimony either at the time of trial or since. But this position, while supported by rule and precedent in ordinary eases, is not allowed to prevail where it appears from a perusal of the record that material evidence, made incompetent by statute for reasons of public policy, has been admitted and allowed to affect the result. In such case it became the duty of the trial judge to exclude the testimony,^and his failure to do so must be held for reversible error, whether exception has been noted or not. '

Broom v. Broom, 130 N. C., 562; S. v. Gee, 92 N. C., pp. 756-762; S. v. Ballard, 79 N. C., 627.

We have no desire or purpose to intimate that there is evidence of collusion in the present case, but, as heretofore stated, this legislation is designed not only to prevent collusion, but to remove the opportunity -for it; and to allow a divorce to stand which has been procured on testimony expressly made incompetent by statute, merely because the evidence was not objected to at the time and no exception has been noted of record, would be to afford every facility for collusive divorces, and, in many instances, would in effect nullify the statute. >

For the error indicated, there must be a new trial, and it is so ordfered.

New trial.