SUPREME COURT.

Otago Daily Times, Issue 21019, 7 May 1930, Page 5

SUPREME COURT.

DIVORCE PETITION HEARD. HODGSON v. HODGSON AND . COSTER. DAMAGES AGAINST CO-RESPON-DENT. His Honor Mr Justice Kennedy and a jury of 12, of which'. Oswald M, Smith was foreman, were engaged p in the Supreme Court yesterday in hearing a petition for divorce. The suit was brought by Jonathan Hodgson against ■Amelia Julia Waitara Hodgson (respondent) and Alexander Coster (co-respon-dent) , and was based on the ground of misconduct. _ Mr E. J. Anderson appeared for the petitioner. The respondent and eo-rospondent did not appear, nor were they represented by counsel, Mr Anderson stated that the respondent and the co-respondent had been duly served with notices to appear, but nothing had been done by them, and the case was undefended. In this case damages to the amount of £SOO were claimed, and it was' necessary that the subject of an award of damages should be a matter for a jury. The petitioner and respondent were married in July, 1021, and lived together till the end of 1927. The respondent had to go into the Dunedin Hospital for treatment for a miscarriage early in January, 1928. and while the petitioner was visiting her there he found a letter waiting for her. Recognising the writing on the envelope and having his suspicions aroused, he took the letter home, and discovered then that things were not as they should be. The respondent did not return to live with the petitioner when she left the hospital, and evidence would be given to show that shl had lived as the wife of the co-respondent. There were four children of the marriage, and the petitioner had had to send them to a home after he had carried on his own home for some two months. The letter written by the co-respondent to the respondent was couched in very affectionate terms, containing expressions such as “ darling angei ” and “ my little brown sparrow.” Jonathan Hodgson, a carrier, gave evidence on the lines of Mr Anderson’s opening statement. He stated that when he found a letter in the hospital addressed to his wife he took it home and read it. Witness stated' that' Coster went to his house in the latter part of 1927 as a visitor. The day after he found the letter in the Hospital he spoke to his wife about it, and told her he had caught her. She _ lay back in bed and cried. After leaving the Hospital she went to her mother’s house in South Dunedin, and a little later she went to Hyde. Witness went to ■ Hyde by motor one Sunday in February, 1928, and endeavoured to get his wife to return to him. Coster was living in the same house as the respondent at the time. The respondent did hot agree to his request, but she returned to Dunedin in the oar and went to live with her The respondent never returned to witness's home. Witness visited his wife twice in South Dunedin, asked her to return, but she refused. Shortly afterwards witness put his children into a home and went into lodgings. Since March. 1928, witness had received no communication from his wife, and no request for maintenance. He had maintained the children. He had since seen the respondent in a fish shop in Mosgiel. Coster was also in the shop. To his Honor: The co-respondent did not visit witness’s home frequently prior to the respondent entering the Hospital for treatment. He had been there on two or three occasions with the, respondent’s father. . Alexander Chisholm, head ledger-keeper in the Bank of New, Zealand in Dunedin, stated that it had been his duty for the last 13 years to examine and compare specimens of handwriting. In his'opinion the signature of the co-respondent on the acknowledgment of service was the same as that in the letter produced. Bernard Whitburn, 1 a retired .carrier, gave evidence that the petitioner had boarded with him in Hope street for 15 months from March 9, 1928. The petitioner was absent on one or two nights, when ho visited his father’s place at Wingatui. Reter Leslie Duncan, accountant for J. K. Moopey and Co., stated that in 1928 the co-respondent called at his office looking for work. He looked down and out, and he was given a start the same night. The co-respondent stated that his wife was in trouble, meaning that she was pregnant, and the firm asked that she should be sent to the office. A woman, whom the accused identified by a photograph as the respondent, called the next day and received £3. Constable Phillips, of Mosgiel, stated that the co-respondent was in the fish buisness in Mosgiel last year.- A woman, who was believed to be his wife, assisted him in the shop. The couple lived above the shop. Witness knew the woman very well, and had known her as Mrs Hodgson. Jessenox Alfred Hislop, deputy-regis-trar of births, deaths, and .marriages in Dunedin, gave evidence regarding an entry in the register relating to the birth of a child on November 29, 1928. The respondent signed the entry as the mother of the child. Sydney Dunkley, manager of the cb.il--drens rest home, gave evidence that he went to Hyde.one Sunday in February; 1928, in company with the petitioner, who was endeavouring to get hia wife back. The respondent and the co-respondent were living with a brother of the former. At the first the respondent was not inclined to go back, but later on she agreed to talk the matter over for the sake of the children, and returned to Dunedin in the car. Subsequently witness twice visited the house where the respondent was staying in South Dunedin. On the first occasion the respondent was rather inclined to go back to the petitioner, who was quite agreeable to ask her to go back. She did not _ go back, however. On the second occasion she said she would go back, but she did not want to take the children owing to her weak state, and, asked to be left alone till she picked up her strength. Eventually she got tired oi, being pestered by the petitions, and said she would never go back, after what she had gone through during her married " m kp nagged at her as he was doing. To his Honor: The respondent told witness that Coster was a man and the petitioner was not. She stated that during her married life she had been left alone as a young girl practically night after night with young children and had got very little sympathy from her husband. When she was at Hyde she' said she did not deny that what was in the letter was true. She also said that the the life she had been living / before had practically driven her to the co-respon-dent. His Honor asked that the witness Duncan be recalled. He said he was calling the witness because the evidence so far called did not cover the ground expected. He would have to ask some further questions, because the witnesses had not been asked all the questions that should have boon put to them. Constable Phillips, who was recalled, stated that the respondent had the reputation of living as Coster’s wife. The forman of the jury said be thought the jury would like to know something about the character of the petitioner and the respondent as well as about that of the co-rcspondcnt. ' His Honor said it was apparent that much further evidence should have been presented, but, they must deal with the case on the evidence presented. He would adjourn the court for 10 minutes to enable the witness Duncan to attend. In reply to his Honor, Peter Leslie Duncan stated that the woman called at Mooney’s the, day after Coster had said that lie was in trouble. She mentioned that Coster had sent her in. but she did understood that she was Mrs Coster, beunderstood that she was Mrs Coster,, because Coster said he would send his wife in. This concluded the evidence. His Honor said the jury would be asked to answer three questions. The first was whether the respondent committed adultery with the co-respondent, and the second was whether the co-respondent committed adultery with the respondent. These two questions might seem to come to the same thing, but they were put separately because the evidence as against the respondent was not the same as the evidence against the co-re'spondent. The third question invited the jury to fix the damages which should be paid to the petitioner by the co-respondent in respect

to the adultery, if any, committed by him with the respondent. It was necessary to remember that circumstances of suspicion were alone not sufficient to prove adultery. The evidence. must be such as to be incompatible with innocence. The first item of evidence against the respondent was when she was confronted with the letter proved to have been written by the co-respondent. That letter pointed to certain intimacy between the respondent and the co-respondent. When confronted with the letter she was ill in hospital, but her conduct then Would naturally lead the jury to believe that she did not deny, but rather seemed to admit, the intimate association which the letter disclosed. After her illness she did not rejoin her husband. At Hyde she was found with her brother and the co-respondent, and later in Mosgiel she was found at the same place as Coster, assisting him in his business. There was evidence by the constable as to some close association at Hyde, the respondent and co-respondent, being frequently together. Then there was, as against the 'woman, further evidence by the. signature in the births’ book at the registrar’s pfficei There was evidence that she was not living with her husband, so the jury could very well take it that she had given birth.to a child of which the petitioner was not the father. That would no doubt be taken as sufficient to show that adultery was committed by the respondent. It had to be considered whether adultery had been proved against the co-respondent. There was a letter written by him pointing to an intimate and improper association with the woman prior to her going to the hospital for certain treatment. ‘ > Subsequently he had twice lived at or near the same house as the respondent. The woman who called on Mr Duncan was the respondent, and she went there after an interview in which. Coster had referred to his wife as .being in trouble and had asked for assistance. The jury, no doubt, might take it as clearly established that the corespondent committed adultery with the respondent. The jury would hear in mind that the admission made by the wife in the register of births was not evidence against the co-respondent. With reference to the petitioner’s claim for damages what appeared to the jury had already appeared to Him. Material which would naturally ,he expected 'in such a claim had not been furnished. There were many matters which the jury must really know to enable it to come to a proper conclusion. The petitioner was claiming the large sum of £SOO as damages. In cases such as this damages were awarded by way of compensation, and not to punish adultery. The jury would have to arrive at a just and proper compensation for the petitioner’s loss. The court . was not sitting as a court of morality to punish the -co-respondent for his offence against the moral law. It was the duty of the jury simply to assess due compensation for loss which had been suffered by the petitioner. Whai had to be . considered was the value of the wife, injury to petitioner’s feelings, the blow to his honour, and the hurt to his matrimonial and family life. The jury had also to consider whether the wife's affections had been alienated by her husband’s conduct, so that the co-responddat did not have to use any any special efforts to win the woman. It was for the jury to determine by applying the principles he had mentioned. The foreman asked if, in assessing any damages, the jury could make a proportion payable to the children or to the State to maintain them. His Honor replied in the negative. After damages were awarded the question of how they should be disposed of would be a matter for consideration. The jury retired at 12.30 and returned at 12,48. t The foreman said the 'answer to the .first and second questions was “Yes.” In respect to the third question, they bad decided that the damages should be £250. His Honor then granted a decree nisi, to be moved absolute after the expiration of three months. Co-respondent was ordered to pay costs on the lower scale, disbursements, and the expenses of witnewos, to be fixed by the registrar. . In reply to his Honor, Mr Anderson said that any application for apportionment of the damages could be made at a later date. -