Mouille v. Schutten

O’NIELL, Chief Justice (dissenting). This case, on its merits, presents only questions of fact, which questions, in turn, depend upon the veracity of the witnesses, whose testimony is conflicting. In such a case an appellate court should defer very largely to the judgment of the judge before whom the witnesses testified. Both parties to this suit are asking for a decree of separation from bed and board. The record leaves no doubt that such a decree ought to be rendered. It would not matter much whether the decree should be rendered in favor of the wife, or against her, but for the fact that the decree against her condemns her as being unfit for and unworthy of the possession or guardianship of her child. The only matter in contest in this case is whether the mother or the father should have the possession of their only child — a girl only ten years of age, and' very weak physically. She needs a mother’s care. The judge who tried the case had the child brought before, him, and tenderly questioned her. The judge, therefore, got first-hand information as to where the child’s happiness lay, before he decided to consign her to the care of her mother. We must bear in mind that, in a case like this, the judge retains jurisdiction and authority to transfer the care and guardianship of the child from one parent to the other, at any time, according to changing circumstances or conditions, even after the appellate court has passed upon the case. For that reason, also, this case is peculiarly one in which the judgment of the court in which the witnesses testified should not be set aside by an appellate court unless the judgment is obviously wrong. The testimony is conflicting, of course, but it appears to me, as it appeared to the judge before whom the case was tried, that the preponderance of the evidence is in favor of Mrs.- Schutten. The terrible arraignment of her, in her husband’s pleadings, is not supported by proof — in my judgment — except perhaps as to some pardonable indiscretions on her part. Her reason for going to work in a réstaurant was that her husband, according to his testimony, was working for a salary of only ten dollars a week; and she had to lend her help to the support of the little fámily until times might improve. The restaurant was patronized by a high class of people; and all of them who testified in this case said that the place was respectable and well conducted. According to their testimony, the private dining rooms where the waitresses were called upon sometimes to wait upon customers, had glass doors and windows on all sides, and were surrounded, outside of the building, by a veranda, from which anyone could see into the dining rooms. The testimony shows that there was nothing improper in that feature of the establishment. ’ I agree with the judge who tried this case that the evidence does not sustain Mr. Schutten’s charge that his wife was guilty of , adultery. There is no direct charge that she had sexual relations with Toe Jones. Mr. 'Schutten, in his testimony, said that there were only two occasions when he *867 found Joe Jones at his, Schutten’s home. The first of these occasions was in January, 1933, and the second was in'June, that year. Mr. Schutten testified that, on the first of these occasions, he came home about 12 :30 a. m. and found Jones and Mrs. Schutten standing at the front door talking; and that he, Schutten, merely bade Jones good night and went to bed, leaving Jones and Mrs. Schutten in their conversation. Mr. Schutten testified that, on the other occasion when he found Jones at his, Schutten’s, home, he came home at 3:30 a. m. and, finding the front screen door latched, he entered his. house through a side entrance, and, in entering, he collided with Jones, coming out of the house. He asked Jones what he was doing there, and Jones, having a package in his hand, said that Mrs. Schutten’s mother had sent him for the package. Schutten testified that he took the package from Jones and found that it contained only an empty whiskey bottle; and he testified: “It seemed strange that her mother should be sending him for empty whiskey bottles; then I hit him”, and that he ran away. Schutten testified that he then asked Mrs. Schutten what she was doing, and that she said that they had been giving a party, and that Jones had remained to wash the glasses. That is Mr. Schutten’s version of the relations between his wife and Jones; and, taken at its face value, it does not prove that Mrs. Schutten was guilty of the unpardonable sin. Mr. Schutten testified that, on occasions when he worked until nearly midnight, his wife remained at her mother’s house until the time for his home-coming; and that, “on several occasions she got Joe Jones'to drive her home at 11 or 11:30 at night.” There is testimony showing that on all of these occasions Mrs. Schutten was accompanied by her mother or some other member of the family. The only direct charge of adultery, in Mr. Schutten’s answer to this suit, is the allegation that Mrs. Schutten was having sexual intercourse with a man named Gauthreaux during a period of three or four years. This allegation is discredited by the fact that Mr. Schutten has never asked for a divorce on the ground of adultery; and it is not supported by any testimony except that of Gauthreaux himself. He testified, on the trial of the rule to show cause why Mrs. Schutten should not have the temporary care and custody of her child, that he had known the Schuttens for years, and that during those years he had gone on parties with Mrs. Schutten and got drunk with her, and had committed adultery with her. He said that his relations with her ended in 1932, and that he had never been with her since that year. He testified that he was only twenty-five years old when he was testifying, in 1937; hence he was only twenty years old in 1932. He said that he was married in 1933; and that he brought Joe Jones to the Schutten home and introduced him to Mrs, Schutten, because he, Gauthreaux, knew that he was about to be married. On cross-examination he admitted that he had not been summoned as a witness in the case, but said that he had come into court voluntarily, to divulge his past relations with Mrs. Schutten for the benefit of her child, and because he, Gauthreaux, then also had a little *869 daughter. We must hear in mind that Mr. and Mrs. Schutten’s little daughter, for whose welfare Gauthreaux claimed to be so solicitous, was born on the 6th of February, 1528 — before the time when Gauthreaux claims to have commenced his illicit relations with the child’s mother. On the trial of this case on its merits, Gauthreaux was called to the witness stand again by counsel for Mr. Schutten; but, when the first question was put to him, the judge asked if the purpose was to have the witness support the allegation that he had committed adultery with Mrs. Schutten, and, being informed that that was the purpose, the judge refused to hear the testimony. My opinion is that the judge was right in refusing to allow the witness again to flaunt his arrogance in the face of the court. Such testimony is, in its very nature, and from the source from which it comes, utterly unworthy of belief. There is no reason why a judge should be obliged to listen to testimony that cannot serve any purpose but to blast human lives and to degrade the one who proposes to do the blasting. Such testimony is not to be compared with that of paid detectives. The objection to the testimony of paid detectives is founded upon the fact that they are paid to procure and furnish the evidence. The objection to that kind of evidence applies also to the testimony of hired expert witnesses. But the testimony of one who claims, by his testifying, to be violating the most intimate of all secrets violates a principle of public policy. A woman is defenseless against such testimony. If she talces the wittiess stand and denies the accusation, she merely leaves it to the judge or jury to decide whether she or her accuser committed the perjury. If one who has been guilty of having illicit relations with a certain woman is summoned as a witness, against his will, and is asked whether he committed the offense, he ought to refuse to answer. A judge should not be allowed to punish him for contempt — and I doubt that any judge would punish such a witness for contempt- — for refusing to be put on the spot, so to speak, by being compelled to elect whether he will debase or perjure himself. If such a witness does not refuse to divulge his secret, the judge ought to forbid him to divulge it. And the reason for that is that the testimony would be utterly worthless as evidence. It is a matter of no importance that there is no statute forbidding the giving or hearing of such testimony. We are admonished by the Civil Code, in article 21, that where there is no express law the judge must decide according to equity, and that to decide according to equity an appeal must be made to natural law and reason. Accordingly, there is no reason why a judge should listen to testimony that is essentially worthless as evidence, debasing of the one who gives it, hurtful to others, and repulsive to the human sense. For these reasons I respectfully decline to subscribe to the prevailing opinion or the decree rendered in this case.