Toole v. . Toole

MekrimoN, C. .J.: The question which the Court declined to allow the witness Pemberton to answer on the cross-examination, by implication sufficiently suggested the nature and purpose of the evidence it was intended to elicit. It was expected that this witness would state, in substance, that the plaintiff had forbidden his wife, before a time specified, to go *617 or associate with the person named, or to go where he was. The evidence of other witnesses went to show that the plaintiff had reason to suspect that his wife and the person named were unduly intimate. We think that such evidence was relevant and competent. It tended, in some measure, to contradict. the witness Toole. It was not probable that the plaintiff would have the -man, whom he had reason to suspect was too intimate with his wife, to work for him, and that he invited that man to his house and to stay there with his children. It would have tended also to prove the alleged adulterous intercourse. There was evidence tending to prove that after the plaintiff had forbidden his wife to go with Palmer, she did so. A good, innocent wife would not have gone or associated with him after such forbiddance, she would more probably, thereafter, have avoided him. That she so associated with him' afterwards, tended to. strengthen the other evidence of the alleged adulterous intercourse. The proposed evidence was competent in another point of view. The plaintiff alleges that the adulterous intercourse alleged was “without the consent, connivance or procurement of the plaintiff.” This the answer denies. The issue thus raised was material, and though .it was not submitted, the Court might or ought to have submitted it as the evidence bore upon it.' The evidence proposed and rejected tended to show that the plaintiff did not connive .at the defendant’s lascivious intercourse with Palmer: The evidence was not hearsay, it related to what the plaintiff said directly to the defendant at a time designated-upon a subject germane to the matter in question. The evidence was, in no proper sense, that of the plaintiff or the defendant, and, therefore, incompetent under the statute (The Code, §§ 588, 1351). It was evidence of a third person, and -competent in the aspects of the case above pointed out. Error.