WALDRON v. WALDRON.

Mary Russell Beauchamp was married in September, 1865, to E. H. Waldron. They lived in Lafayette, Ind., from the date of their marriage until 1875, when they removed to St. Louis, the employment of the husband calling him there. In 1877 they left St. Louis, and returned to Indiana, where they continued to live as husband and wife until June, 1886. At that date the husband abandoned his marital relations, and fixed his permanent residence in Chicago. For 12 or 15 years, prior to June, 1886, the husband, Waldron, had friendly relations with E. S. Alexander and wife, who lived in Chicago; Waldron dealing with Alexander in a business way, and also calling socially at his residence, and Alexander visiting Waldron when he came to Lafayette. In February, 1886, E. S. Alexander died, leaving a widow. Subsequently, Mrs. Waldron filed in the superior court of Tippecanoe county, Ind., a suit for divorce against her husband, which ripened, in June, 1887, into a decree granting the divorce, and giving her $10,000 alimony. In October, 1887, E. H. Waldron married Mrs. Josephine P. Alexander, the widow of E. S. Alexander. In June, 1888, Mary Russell, the divorced wife of E. H. Waldron, sued Mrs. Josephine P. Waldron, the former Mrs. Alexander, in the circuit court of the United States for the Northern district of Illinois. The grounds of this action are stated in her complaint

(1) 'Whereas, the said defendant, countriving, and wrongfully, wickedly, and unjustly intending, to injure the said plaintiff, and to deprive her of the comfort, fellowship, society, aid, and assistance of Edwin H. Waldron, the then husband of the said plaintiff, and to alienate and destroy his affection for said plaintiff, on, to wit, the 6th day of June, A. D. 1886, and on divers other days and times between said 6th day of June, A. D. 1886, to the 21st day of June, A. D. 1887, at,' etc., 'wrongfully, wickedly, and unjustly debauched and carnally knew the said Edwin H. Waldron, then and there still being the husband of the said plaintiff; and thereby the affection of the said Edwin H. Waldron for the said plaintiff was then and there alienated and destroyed, and also, by reason of the premises, the said plaintiff from thence hitherto wholly lost and was deprived of the comfort, fellowship, society, and assistance of the said Edwin H. Waldron, her said husband, in her domestic affairs, which the said plaintiff during all that time ought to have had, and otherwise might and would have had,' etc., 'aforesaid.'

(2) 'Whereas, the said defendant, contriving, and wrongfully, wickedly, and unjustly intending, to injure the said plaintiff, and to deprive her of the comfort, fellowship, society, aid, and assistance of Edwin H. Waldron, the then husband of the said plaintiff, and to alienate and destroy his affection for the said plaintiff, on, to wit, the 6th day of June, A. D. 1886, and on divers other days and times between said 6th day of June, A. D. 1886, and the 21st day of June, A. D. 1887, at,' etc., 'wrongfully and unjustly sought and made the acquaintance of Edwin H. Waldron, the husband of the said plaintiff, and then and there, well knowing that said Edwin H. Waldron was the husband of said plaintiff, wrongfully, wickedly, and unjustly besought, persuaded, and allured the said Edwin H. Waldron to desert and abandon the said plaintiff; and thereby the affection of said Edward H. Waldron for the plaintiff was alienated and destroyed, and also, by reason of the premises, the plaintiff has from thence hitherto been wholly deprived of the affection, society, aid, and assistance of her said husband in her domestic affairs, which the plaintiff during all that time ought to have had, and otherwise might and would have had, and also, by reason of the premises, the said plaintiff, during all said time from thence hitherto, suffered great mental anguish and loss of social reputation at,' etc., 'aforesaid, to the damages of said plaintiff of one hundred thousand dollars, and therefore she brings her suit,' etc.

The defendant pleaded that inasmuch as the relation of husband and wife, which formerly existed between the plaintiff and defendant's present husband, had been terminated by a decree of divorce, granted at plaintiff's own demand, the action was not maintainable. She further pleaded the general issue.

The case came to trial in January, 1890. In the opening statement, foreshadowing the case which it was proposed to prove, one of the counsel for plaintiff read to the jury extracts from the divorce proceedings, and commented thereon in a manner which clearly indicated that they were links in a chain of evidence which plaintiff proposed to offer in order to establish the adultery of the defendant. Thereafter, during the progress of the trial, the record of the divorce suit was offered in evidence by the plaintiff, for the general purposes of the case; and its admission was objected to by the defense on the ground that it was res inter alios, and that the plaintiff could not make proof for herself by offering her own petition as evidence in her favor, and thus asperse the character of the defendant. The court admitted the record to prove the fact of the divorce alone, and, while thus admitting it, repeatedly declared that it could only be used for that one purpose, and that the averments in the petition and other matters reflecting on the defendant were not to be disclosed or read to the jury. The defendant excepted to the admission of the record for any purpose whatever.

The plaintiff then offered the statute of Indiana relative to divorce, and this was also admitted, in spite of objection, as evidence of the Indiana law on that subject. The testimony of the judge before whom the divorce proceeding was had was then admitted. Wilson, who appeared as attorney for Waldron in the divorce proceeding, was also allowed, over objection, to testify as to his connection therewith. Davie, the witness on the strength of whose testimony the decree of divorce had been mainly based, was also allowed to testify. In the closing argument to the jury, Mr. Aldrich, of counsel for the plaintiff, used the following language:

"The divorce law of Indiana provides that * * * a divorce may be decreed * * * for the following causes, and no other: Adultery, except as hereinafter provided; impotency existing at the time of the marriage; abandonment for two years; cruel and inhuman treatment of either party by the other; habitual drunkenness of either party; the failure of the husband to make reasonable provision for his family for a period of two years; the conviction subsequent to the marriage, in any country, of either party, of an infamous crime. * * *

"The only two that are referred to in this bill for divorce the record is not here. I shall state it, and if it is challenged I shall read it when it comes—are these: That he had abandoned her. Is there any conflict in the evidence in this case that that abandonment only extended from the 6th day of June up until the time this decree was entered, the 21st day of June, 1887,—a year. Is that a compliance with the statute calling for abandonment for two years? Nothing of the kind. Cruel and inhuman treatment? Hasn't Edward H. Waldron testified upon the stand in this case, and is there any dispute upon this subject, that there was no cruel and inhuman treatment upon his part in this case; that he had never been guilty of cruel and inhuman treatment? And has the statement been challenged that cruel and inhuman treatment, under the laws of the state of Indiana, only means acts or cruelty coupled with personal violence? * * *

"There has been no cruelty, or anything of the kind. They say there is no charge of adultery in this case. The record says that there was no cruel and inhuman treatment, and that he was enamored of Josephine P. Alexander, in this case. * * * Mr. Davie was the only witness upon this subject, * * * and he has said * * * that he * * * did not know Edward H. Waldron until he came to Chicago, and Edward H. Waldron * * * has testified * * * that up to the time he came to Chicago he had no acquaintance with Robert Davie. * * * He was the agent—the paid agent—or Edward H. Waldron. Edward H. Waldron is too able a man, he has too much brains, he is too cute, he is too slick, gentlemen of the jury, not to apply any other terms but those that are fitting to him, to suppose that a decree could be obtained in Indiana for abandonment or for curelty or for inhuman treatment. Edward H. Waldron knew as well as you know that he could only get a divorce, and it could only be procured on the ground of his adultery with somebody. * * * Robert Davie knew it. By reason of this nonacquaintance at that time, Robert Davie could not have testified to any of the acts of cruelty. How did Robert Davie acquire his information? By these innumerable visits to Chicago. * * * In view of the testimony in this case, in view of the relations of the parties, in view of the fact that Edward H. Waldron has testified that he had talked with the defendant on two occasions about these divorce matters, and the fact that he was living at this house at that time, with that fact before you, you cannot believe, that it was unpremeditated, that it was unknown, or anything of that kind.'

'Mr. McCoy, for the defendant, excepted to the statement of counsel that Robert Davie had obtained the information to which he testified in the divorce proceeding in Chicago, or from Edward H. Waldron, on the ground that the court had excluded the evidence of Robert Davie on that subject.

'Mr. McCoy: 'I read a question here as to whether or not, Mr. Davie obtained his information in Chicago, and he replied that he did not, and that extra question and answer was stricken out as being within the character of the evidence excluded by the court. Therefore, I do not think it is proper to comment upon to the jury.'

'Mr. Aldrich further stated to the jury: 'I submit to you, gentlemen, that any information upon that subject—whether it was cruelty, or whether it was cruel and inhuman treatment, or whether it was abandonment—must have been acquired by Mr. Divie while he was in Chicago.'

'To which statement of counsel for the plaintiff, Mr. McCoy, counsel for the defendant, objected, and then and there duly excepted, for the reasons above stated.

'Mr. McCoy further objected to the statements of the counsel for the plaintiff to the jury as to the laws of Indiana on the subject of divorce, and the argument that it must have been granted on the grounds alleged in the complaint in the divorce proceeding reflecting upon the character of the defendant, Josephine P. Alexander, and then and there duly excepted to such statements.

'And thereupon, after further arguments to the jury, * * * Mr. Dexter addressed the jury in a closing argument on behalf of the plaintiff, in the course of which * * * he spoke as follows:

'Mr. Dexter's Closing Argument.

"Now, what was that divorce? Gentlemen, this subject of divorce was spoken of, you recollect, between Waldron and the defendant. It is was a matter of conversation, he says, on one or two occasions, and you have heard read his language on that subject. How, I assert that here was a wicked scheme against the established order of society and the rights of this woman, and that the defendant shall not excape here by throwing up false issues. Are there any grounds of divorce here, except those which sustain this action?'

'Mr. Walker, for defendant: 'I enter my objection to the statement of counsel.'

'The Court: 'All that was in the declaration the court excluded.'

'Mr. Dexter: ' * * * The conclusion that it [the evidence] leads to, counsel shrinks from; it hurts him. The jury cannot be fogged about it. There is something underneath here that is reached for, and you will lay hold of it, and you will not be deceived about it. There will he no effectual effort to keep your minds from coming to the conclusion that it ought to reach. I shall confine myself to the statements admitted by the court and read to the jury. * * *

"The plaintiff prays for decree of divorce for misconduct of the defendant on account of his cruel and inhuman treatment of this plaintiff—neither cruel nor inhuman treatment proven save in the language of the bill—'in this, that he has become enamored of one Josephine P. Alexander, a married woman.'"

In its final charge to the jury, the court, among other things, said:

'The court has already adjudged that the decree of divorce obtained by the plaintiff from Mr. Waldron, June 21, 1887, is evidence conclusive in this case that the marriage relations between the plaintiff and Mr. Waldron were dissolved from the date of that decree. The decree of divorce acted on the status of the parties, and dissolved the marriage relation theretofore existing between them, and left each free to remarry; but the allegations contained in the bill of complaint in that case against Mrs. E. S. Alexander, the present defendant, are not evidence in this case, and were excluded by the court.

'The evidence also taken on the trial of that case is not competent evidence against the defendant in this case, and was also excluded. She, not being a party thereto, is not permitted to appear and cross-examine the witnesses. Nor should the jury assume or infer from anything in evidence in this case that the judgment of divorce was granted upon the ground of adultery, as that is not one of the grounds alleged in the bill of complaint, nor upon any ground or for any of the causes having reference to the conduct of the defendant in this case. Such an inference has been sought to be drawn by counsel from the proceedings in that case, but it is an inference not warranted by the record in evidence, and unfair towards the defendant. The jury will try this case upon the evidence produced on this trial, and not assume or infer that other evidence might have been produced here, or was produced in some other case, to which the defendant was not a party.'

In February there was a verdict in favor of the plaintiff for $17,500 (45 Fed. 315). In March an application for a new trial was heard, and taken under advisement. In June, the motion for a new trial having been overruled, the defendant moved in arrest. This motion was also overruled, and on the same day judgment was rendered on the verdict. The record states that, on motion for defendant, the time to file a bill of exceptions was extended to the 1st day of November next. Thereafter, a writ of error was sued out, and a supersedeas bond fixed at $25,000. On October 6, 1890, a written stipulation was entered into between counsel, which, after mentioning the suing out of the writ of error, the giving of the supersedeas bond, and the issuance of citation returnable here in October, 1890, expressed the desire of the plaintiff in error to obtain an extension of time to prepare the bill of exceptions and file the record here, and set out that this extension was agreed to by the defendant in error, provided:

'First. That the above-named defendant, as plaintiff in error, shall file in the office of the clerk of the supreme court of the United States the said writ of error, the said citation, and this stipulation, and shall have the said cause docketed in said supreme court, in its regular order, within the time regularly required by the rules of said court for the filing of the transcript of the record in said cause in said supreme court, as if this stipulation had not been made.

'Second. That counsel for the above-named defendant shall have until November 15, A. D. 1890, to prepare the bill of exceptions in said cause, and deliver it to counsel for the above-named plaintiff, for examination and such correction as he may deem proper.

'Third. That counsel for the above-named plaintiff shall examine said bill of exceptions, and return it to counsel for the above-named defendant within thirty days after it shall have been delivered to him, with any proposed corrections or alterations which he may deem proper.

'Fourth. Thereafter, as soon as practicable, but within thirty days, upon reasonable notice, said bill of exceptions shall be presented to the judge who conducted the trial of said cause, for his approval, after the settlement by him of any parts of said bill of exceptions as to which counsel may have been unable to agree.

'Fifth. That said bill of exceptions shall be approved by said judge, and be by him sent to the clerk of said circuit court, with directions that it be filed as of the date of the entry of said judgment.

'Sixth. That within thirty days after said bill of exceptions shall have been so filed the transcript of said record shall be completed, and filed in the supreme court of the United States, in said cause, as theretofore docketed.

'That in the meantime, so long as counsel for said above-named defendant make no default in the performance of the conditions of this stipulation, counsel for the above-named plaintiff (defendant in error) will make no motion to dismiss said writ of error for failure to file said transcript of the record within the time regularly prescribed by the rules of said supreme court, and the said transcript, when so filed, shall be taken and considered as having been filed in apt time.

'This stipulation is executed in triplicate, one to be filed in the supreme court of the United States, and one to be retained by counsel for each of said parties.

'Dated at Chicago, Illinois, October 6, A. D. 1890.'

Application was made here, in due season, to docket this agreement and writ of error in lieu of the record, and was refused. The settlement of the bill of exceptions by the court is thus stated in the record:

'The clerk of said court will file this bill of exceptions as of the date of July 10th, A. D. 1890.

R. Bunn, Judge.