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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Steedman v. Steedman [1887] ScotLR 24_754 (20 July 1887)
URL: http://www.bailii.org/scot/cases/ScotCS/1887/24SLR0754.html
Cite as: [1887] ScotLR 24_754, [1887] SLR 24_754
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SCOTTISH_SLR_Court_of_Session
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Court of Session Inner House First Division.
[
v.
Facts:
A husband and wife separated voluntarily in 1865, six weeks after the marriage, and thereafter lived in separate houses in the same town. The husband, however, subsequently visited and had connection with his wife, who bore one child in 1866, and another in 1869. In 1885 the wife bore another child, in consequence of which the husband raised an action of divorce on the ground that the child was the result of adulterous intercourse. Held, upon the evidence, that the presumption pater est quem nuptiœ demonstrant had been rebutted, and decree of divorce granted.
Observations upon Montgomery v. Montgomery, January 21, 1881, 8 R. 403.
William Steedman, quarryman, Lochgelly, was married to Magdalene Brown on 27th November 1865. For about six weeks after their marriage the spouses lived together in Park Street, Lochgelly, when they quarrelled and separated, Steedman returning to live in his father's house, which was next door to that which his wife continued to occupy. He continued to visit her up to June 1868, when he began to suspect her of improper conduct with other men. In October 1869 Mrs Steedman removed to a house in High Street, Lochgelly. There were then two children of the marriage—Magdalene, born 3d April 1866, and Margaret, born July 29th 1869. Mrs Steedman then brought an action for aliment against her husband, which was settled by a minute of agreement
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in February 1870. Up to 30th October 1885 Steedman paid his wife aliment at the rate of 6s. a-week. During this period both parties resided in Lochgelly. In October 1885 Mrs Steedman bore a male child, and in consequence thereof her husband raised this action of divorce, on the ground that the child was the result of adulterous intercourse with some person or persons unknown.
The pursuer's case was that since a month previous to the birth of the second child in 1869 he had not cohabited nor had sexual intercourse with the defender, nor been in her house, nor spoken to her, except on two occasions in the summer of the year 1869, when he called to arrange with her the terms of the agreement for payment of aliment to her.
The defender averred that “after the birth of the second child the pursuer continued to visit the defender in the evenings up to November 1869, and he again commenced visiting the defender in the beginning of October 1884, and continued these visits down to the beginning of March 1885. These visits were generally in the evenings, between seven and nine o'clock, but he never remained all night with the defender. In consequence of the intercourse with the pursuer the defender was again delivered of a third child on 4th October 1885.”
At the proof the defender deponed—“The statement in the answers to this case that pursuer continued to visit me till November 1869, and that he again commenced visiting me in October 1884, is not correct. Between 1869 and 1884 he wanted me to leave for a foreign country. I did not tell that to my agent. I neglected it. It was in the evening between eight and ten o'clock that my husband visited me. He did not come on any particular day of the week—towards the end of the week. He did not visit me in the summer, only in winter, when it was dark. He always came at night, for fear any person would see him. I suppose he was afraid of his sisters and brother. He did not see anyone in my house when he visited me. My daughter was often at the singing when he came. She is seventeen years of age.” The defender's statement was entirely uncorroborated. No one spoke to having seen the parties together on the occasions mentioned by the defender in her answers. On the other hand, there was no evidence of the defender's adultery or even of her intimacy with other men. The import of the proof in other respects appears sufficiently from the opinions of the Judges.
On 17th November 1886 the Lord Ordinary ( M'Laren) found that the pursuer had committed adultery with some person unknown, and granted decree of divorce.
“ Opinion.—This is a narrow case, but after taking time to consider the evidence I have come to the conclusion that the pursuer is not the father of the child to which the defender gave birth on 4th October 1885, and therefore that the charge of adultery is proved.
“The parties were married in November 1865, and about six weeks after the marriage they separated, in consequence apparently of differences about money matters. The. wife (defender) continued for a time to reside in the married home, and the husband went to live with his father, brother, and sister in the same street of Lochgelly in which his wife resided. About three years later the defender brought an action for aliment against her husband, which in February 1870 was settled by a minute of agreement. Since then the parties have continued to live apart in Lochgelly in different quarters of the town.
“The case of the defender is that her husband during the period of the separation made clandestine visits at her house in the evenings, and that he is the father of the child. The pursuer admits that he occasionally visited the defender during the first three years after the marriage, but he states that since 1870 he has never seen his wife, giving as his reason that he suspected her of improper intimacy with men.
“So far as the case depends on direct evidence we have nothing but the statement of the husband contradicted by that of the wife. The wife is entitled to have it remembered in her favour that she has borne a good character, has brought up her children respectably, and is not proved to have been unduly intimate with other men.
“It appears to me, however, that the wife's story is intrinsically incredible. I can understand that she should receive visits from her husband after their separation, but such visits would not naturally be of a clandestine character; and if they were continued, as the wife says they were, I think it is quite certain that the fact must have come to be known to some person or persons other than the defender herself. Further, when the defender became pregnant, if her story were true, she certainly would have informed her husband of the fact, and would probably, for the sake of her own reputation, have mentioned the circumstance of her husband's visits to her family and friends. She admits that she did not inform the pursuer of her pregnancy, and she is unable to bring forward any witness to prove that her husband had been seen visiting her house since the separation. I may add that none of the husband's family profess to have any knowledge of the alleged visits.
“A very remarkable, and to my mind conclusive, piece of circumstantial evidence has now to be noticed. Since the separation of the parties a large tumour or wen has appeared on the pursuer's forehead. It is, I need hardly say, a very noticeable feature of the pursuer's face, and one which could not fail to attract his wife's attention if she had ever seen him after it appeared; yet when under examination she was unable to say that any change had taken place in her husband's face since she knew him, and she seemed very much surprised when her husband entered the Court-room, and with the growth on his face was presented to her for identification.
“In all the circumstances I shall find the adultery proved, and grant decree of divorce.”
The defender reclaimed, and argued that the presumption pater est, &c., had not been rebutted—Stair, iii. 3, 42; Bankton, i. 2, 3, and 4—iii. 3, 98; Ersk. i. 6, 49, and 50; Bell's Prin. sec. 1626; Routledge v. Carruthers, May 19, 1812, F.C.; Innes v. Innes, July 7, 1835, 7 Scot. Jur. 470; and Feb. 20, 1837, 2 S. & M'L. 417; Sandy v. Sandy, July 4, 1823, 2 S. 453; Jobson v. Reid, Jan. 19, 1830, 8 S. 343; Mackay v. Mackay, Feb. 24, 1855, 17 D. 494; Walker v. Walker, Jan. 23, 1857, 19 D. 290; Tulloh v. Tulloh, Feb. 28, 1861, 23 D. 639; Brodie v. Dyce, Nov. 29, 1872, 11 Macph. 142: Gardner v. Gardner, May 30, 1876, 3 R. 695;
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and May 17, 1877, 14 R. 56; Reid v. Milne, Feb. 8, 1879, 6 R. 659; Montgomery v. Montgomery, Jan 21, 1881, 8 R. 403. Respondent's Authorities— Morris v. Davies, 1837, 5 Cl. & Fin. 242; Tait on Evidence, 490.
At advising—
The fact of the birth of this child is not disputed, but the adultery is denied, and it is alleged that the pursuer is himself the father of the child, having, as the defender alleges, visited and had intercourse with her occasionally in 1884 and 1885, and one peculiarity of the case is that the parties, after their separation in 1865, had intercourse with each other in the defender's house, which resulted in the birth of their second child; and the defender's allegation on record in this case is that this clandestine kind of intercourse was renewed and continued for some time in the year 1884. Upon the admitted facts of the case as set out in the record it is clear that there was no intercourse of any kind between the parties for fifteen years prior to the alleged visits in 1884.
In that state of matters, your Lordships have to decide whether the present pursuer can be held to have established his case, especially looking to the circumstances that he and his wife lived near each other and in the same village. The state of the law does not admit of any dispute. In the last case which came before this Division on this branch of the law I appear to have given the opinion of the Court, and to have said this ( Montgomery, 8 R. 403)—“Whatever difficulty there may have been some years ago in laying down the law relative to the application of the rule pater est quem nuptiœ demonstrant, in circumstances such as those which here occur it may, I apprehend, be held as now authoritatively settled both in this country and in England that the rule may be met by direct or even circumstantial evidence sufficent to negative the presumption, and that in dealing with such a case the question to be disposed of is one of fact, viz., whether the circumstances disclosed in evidence are such as to satisfy the Court that no sexual intercourse took place between the parties at the period when it is alleged that it occurred.” And then I refer to the case of Patterson, 11 Macph. 142, and to the opinions expressed by Lords Lyndhurst and Cottenham in the English case of Morris v. Davies, 5 Clark and Fin. 242, as corroborating the view I had expressed.
That being the law upon the subject, I have to say that after anxious consideration I have come to the same conclusion as the Lord Ordinary. I think the child is not the result of intercourse between the pursuer and defender There is no evidence in the case to show that they have ever met during the last fifteen years, or that the pursuer has ever seen the defender during that time. The pursuer's evidence is quite distinct, and completely negatives the allegation that he was in the defender's house in 1884. It is, further, of the greatest importance in the case that the parties admittedly lived separate for fifteen years, and that the pursuer is not proved to have been seen with the defender or at her house during that period. These facts are strongly confirmatory of the pursuer's case that he never was there, and taken along with the other fact of the birth of the child, they go a long way to shake the presumption of law to which I have referred. But that would not be sufficient if the defender's story was a credible one.
The question accordingly turns upon the relative credibility of the pursuer and defender. I see nothing which leads me to doubt the truth of what the pursuer says, and, as I have mentioned, what he says is confirmed by the other evidence. But the defender is in this position—that while she alleges on record that the pursuer continued to visit her till November 1869, and that he did not again visit her till October 1884, when she is examined she gives a different account, for she states that he visited her frequently during the interval, and that he wanted her to go to a foreign country. This evidence is directly contradictory of her admissions on record. But in addition I agree with the Lord Ordinary that it is impossible to suppose the pursuer could not have been seen by some one if he had been coming about her house between October 1884 and March 1885. Then there was, further, a total concealment on the defender's part of the fact that the pursuer was coming about her, and also that she was with child. One woman is examined who seems to have taxed her with being in the family way, but she did not say that the pursuer was the father. Indeed she never seems to have even hinted that to any of her friends.
These are all very remarkable circumstances, and I see nothing in the defender's case which at all shakes the credibility of the pursuer. His case is clear and consistent throughout, and is confirmed by the other evidence. I therefore agree with the Lord Ordinary in thinking that we can come to no other conclusion than that the pursuer was not the father of this child.
The Lord Ordinary has referred to a circumstance which struck him as a remarkable feature in the case. A wen has grown on the pursuer's forehead during recent years, and the Lord Ordinary thinks it would be impossible for the defender to have been visited by the pursuer, as she says she was, during 1884–85 without seeing this. I am of the same opinion.
The case is a narrow one, but looking to all the circumstances, and to the fact that the weight attaching to the maxim pater est quem nuptiœ demonstrant may under recent decisions be held to be somewhat less strong than it once was, I am of opinion that we may grant decree of divorce.
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It appears that shortly after their marriage the pursuer and defender separated, and it is a curious feature that notwithstanding the separation the pursuer did continue to visit his wife for about three years afterwards, and that a second child—a daughter—was born in 1869. But he states that from a certain date in 1869 he has never again visited his wife, and the reason he gives is, that shortly before the birth of their daughter, on two different occasions when he was in his wife's house he heard knocks at the door which created a suspicion in his mind. In addition, a ladder was found against her window on a third occasion in very suspicious circumstances, and there is corroborative testimony to that effect, and that the man who is presumed to have used it was caught near the spot. The pursuer never returned after these events took place. The village is one with comparatively few inhabitants, but it is not said that there is anyone who can contradict the pursuer's statement that he did not visit his wife for fifteen years. If he had visited her there would surely be some-one who would be able to speak to it. Further, the defender admits that no one ever saw the pursuer in her house during these years, and that she never told anyone he had been there. There is also another fact which provides most material corroboration of the pursuer's story, and satisfies me that it is true. A grown-up daughter, who was living with the mother in her house, says she never saw her father there. The evidence in support of the pursuer's case is therefore overwhelming unless there is something on the other side to displace it.
But when we turn to the evidence for the defender, I think we find very strong corroboration of the pursuer's case. She says that the pursuer's visits were frequent in winter, and that he was in the constant practice of coming clandestinely. If that had been the case I do not think it possible that he would not have been seen. To be added to that there is the extraordinary circumstance that she gives no explanation of her husband's absence from her, and of his coming at night when he did come. She indeed accounts for it by saying that she supposes he was afraid of his sisters and brother, but there is nothing to support that statement, and no such explanation was ever vouchsafed to anyone—she never even mentioned to the daughter that her father was there. She further tells a different story in the witness-box to what she stated on record. There is also the fact that he has a growth on his forehead which she had failed to remark, and which truly might have escaped notice once or twice, but could not have done so oftener.
On the whole matter I am satisfied that the onus of proof has been discharged, and that we must give decree in the pursuer's favour.
The pursuer's wife was delivered of a child in October 1885, and the presumption is that the pursuer was the father. If no evidence can be adduced to show that the child was begotten in adultery, and that the husband was certainly not the father, then the law holds that the pursuer must be presumed to be so. He is pursuing this action of divorce on the ground of adultery, and as he founds on the birth of the child he must undertake to prove that he is not the father. There have been a good many cases lately in which the strength of the presumption has been weakened, and I agree with Lord Adam in thinking that the rule as laid down in Mackay's case ( 17 D. 494) may be taken as truly representing the state of the law regarding the matter.
That being so, I was at first a good deal startled when I saw that the Lord Ordinary said in his note that this was a narrow case. I think it is a case the evidence in which requires severe scrutiny and care. Accordingly I have taken great pains to see whether the proposition that the husband is not the father of this child has been established.
Reference has been made to the case of Montgomery, 8 R. 403. The report is rather misleading, because we are not told what the circumstances were. I have examined them, and I find there was very strong proof of the defender's adultery with three different men. This is a very different case, and I have had great difficulty in reaching the conclusion to which Lord Mure and your Lordships have arrived. But I do not dissent, and I only wish to say that we are doing nothing to shake the strength of the presumption as settled in recent decisions, and particularly as laid down in the case of Mackay.
The Court adhered.
Counsel for Pursuer and Respondent— Dickson— Forsyth. Agent— A. B. Constable, W.S.
Counsel for Defender and Reclaimer— Hay. Agent— James Skinner, S.S.C.