£1000 DAMAGES.

Auckland Star, Volume LIII, Issue 77, 31 March 1922, Page 5

£1000 DAMAGES.

BIRD DIVORCE CASE. VERDICT FOR PLAINTIFF FOR FULL AMOUNT CLAIMED. The action for divorce brought by Robert Henry Bird, farmer, of Waikiekie (Mr. Singer and Mr. Stout) against his wife, Amelia Mary Bird (Mr.Kirker), Alexander Drever, farmer, of Kauri (Mr. Johnstone), being cited as co-respon-dent, was continued yesterday afternoon after the "Star" had gone to press. RESPONDENT'S EVIDENCE. The respondent, Amelia Mary Bird, said that she was 27 years of age. She met Bird when she was very young. She was brought up in a very strict atmosphere. She was married when she was 16, and her first child was born five months afterwards. They then went to live at her father's place. She did not have much affection for her husband, and did not get on too well with him, as he used to quarrel frequently. In September of 1917 they came to Kauri, where they had a small farm. She commenced to earn money by working for herself for over a year. Witness said she first met Drever when her husband told her to go through to Mangonui with a party in a motor car to view his farm. She again met Drever at the hospital when her father died. Subsequently Drever made an arrangement with witness to do his washing for him, when at certain times Drever and his son volunteered to chop wood for her. Her husband knew of that arrangement and never once objected. Respondent used to go to dances with Drever and others in his yellow motor car. She was very rarely alone with Drever. Drever's son and daughter often went with them to the dances, also Miss James and Mrs. Wrennal. Her husband knew that she went to the dances, but never objected. She was learning to dance. Drever used to help anybody that needed help. Regarding her attack of measles witness told Drever that she was feeling ill, I whereupon he offered to come and keep house for her. When her husband came "home he said, "Why did you not get up and get somebody to look after you?" It was not true that her husband sent her £10 each month. He only sent during the first two years about £5 in three months. Witness described how she told her husband that she could not live with him, and that she would he better earning her own living as a housekeeper. While at Drever's house she was paid by Drever himself. She wired to Drever for money because he bad .C.OO-of her money in trust. She also lent him £250. Witness denied kissing Drever on all occasions aliened by witnesses for the petitioner. Witness sometimes called Drever by the name of "Alec." Mrs. Wrennal also called him "Alec." Witness with an emphatic "No" denied that Drever had ever been in her I bed. Everybody in the house had early 'morning tea brought to them by Drever. Examined by Mr. Johnstone, Mrs. Bird stated that on one occasion she was at "Whangarei and was penniless and unable to buy her child food. His Honor: And you bad property, worth how much?— Yes, £281. METHODS OF SIGNALLING. The respondent was cross-examined at some length by Mr. Singer. Did you mind your husband coming to see you? —N"o, so long as he did not kiss

mc. - Did you mind Drever coming to the house?— No. He often came with his washing" on a Monday morning. While you were at Russell Drever came there too? —Yes.

And you both lay on the beach in your bathing costumes?— No. We were in the water together. How long were you at Russell? — Three weeks. Drever was there only five days. Witness further stated that when she wanted Drever to come to her place she placed a sheet on the hedge in tho daytime, but denied that she signalled to him at night. Mary Hannah Foster, mother of respondent, next gave'evidence, and stated that during the time she was at her daughter's house she did not see anything in her daughter's conduct that could be taken exception to.

The hearing was then adjourned until this morning.

TO-DAY'S PROCEEDINGS.

This morning when the hearing was resumed, Mr. Johnstone, for the corespondent, intimated that he would not call evidence, and would not put the corespondent in the box. Mr. Kirker said that he would not address the jury on behalf of his client, as his friend Mr. Johnstone would cover the ground in the course of his address. Mr- Singer, in his address to the jury, said that he very much regretted the fact that co-respondent had decided not to go into the witness box. He dare not go into the witness box. For the petitioner a great amount of evidence had been given, while oriTy two witnesses had given evidence for respondent, the respondent herself and her mother. Mr. Singer then traversed the evidence given. The sum of £1000 damages claimed a"a_i__ the co-respondent was a small amount, said Mr. Singer, in view of the circumstances that were divulged in the evidence. ~_ Mr. Johnstone submitted that there was nothing to gain by placing the corespondent in tho box, because if the jury was satisfied that adultery was committed, then a denial by Drever would be of no avail. Counsel addressed the jury at length on the question of the damages. He stated that the marriage had not been a happy one, and it was not the case of the breaking up of a happy home. His Honor in his summing up traversed the evidence given at some length, and said that the main thing for consideration was whether it had been proved that Mrs. Bird and Drever were guilty of adultery. The evidence showed that the petitioner was a decent hardworking man, who, in the interests of his family, found it necessary to go away to find work. That was no reason why a woman should commit adultery. There was ample evidenoe, said his Honor, fo sow that both Mrs. Bird and Drever were on intimate terms. There were the occasions of the measles, the kissing, visits and constant meetings, and the riding about in motor cars.

Continuing his summing up. his Honor referred to the fact that the co-respondent had not elected to occupy the witness box. Regarding the matter of damages, and the claim for £1000, he stated to the jury that they simply had either not to find for damages or to assess damages. It rested with the Court alone to say who the damages went to. The wife might receive portion of the damages, or the children. However, his Honor again reminded the jury that that was a question for the Court. After further remarks his Honor then put the following questions to the

(1.) Did the respondent commit adultery with the co-respondent?

(2.) Did the co-respondent commit adultery with the respondent? (3.) What damages, if any, is the petitioner entitled to? JURY AWARDS £1000 DAMAGES. The jury then retired, and after 35 minutes returned with the following answers to the questions: — (1.) Yes. (2.) Yes. (3.) £1000 damages. Mr. Singer then asked the Court "to make an order for the custody of the three children who were at present with the respondent. Petitioner had the custody of the oldest child. His Honor granted a decree nisi, to he made absolute in three months, and directed that petitioner should be given the custody of the three children. On the suggestion of his Honor counsel for petitioner and respondent agreed to make arrangements regarding respondent's access to the children.

His Honor ordered Drever, the corespondent, to pay petitioner's costs on the highest scale, and respondent's Costs on the highest scale, solicitor's fee £15 15/, witnesses expenses and disbursements to be fixed by the Registrar. One month was allowed the co-respondent In which to pay the damages into Court. Mr. Singer made application for his second counsel's costs.

Mr. Johnstone, who appeared for the co-respondent at the trial, objected, stating that his learned friend had not taken any part in the case. He quoted decisions on the matter in support of his contention that second counsel' 3 costs should not be allowed in this case.

His Honor said Mr. Stout had prepared the case, and taken notes of evidence. Very often second counsel, although he might not say a word at the hearing of a ease, might do all the work. However, his Honor would not allow costs for second counsel.