Scottish Court of Session Decisions

This was an action of divorce for adultery at the instance of Mrs Sara Louise Pollock or Wilson against her husband James Wilson, milk van driver, Glasgow.

The pursuer alleged (1 and 2) that the defender had, upon two occasions libelled, committed adultery with a young woman whose name was stated, (3) that he had committed adultery on a night in the end of March or beginning of April 1896 in the close which led to the house in which he was then living, with a woman believed to be a prostitute, but whose name the pursuer stated she had not been able to discover, and (4) that he had committed adultery on another occasion about the end of April or beginning of May 1896 with a woman whose name the pursuer stated she had been unable to discover, on the stair leading to the same house.

The pursuer entirely failed to establish the first and second charges, and she did not ultimately persist in any of them except the fourth. But she relied upon the evidence brought to prove the third charge as corroborating the direct evidence led with a view of establishing the fourth.

From the proof it appeared that the pursuer had a considerable amount of money of her own, that the defender before marriage had got substantial sums of money from her, that the married life of the parties was not happy, and that the pursuer ultimately left the defender in the end of August 1893 upon the ground, as she deponed, of his cruelty and threats of violence, and that since that date the parties had not lived together.

It further appeared that after the pursuer left the defender he became bankrupt and had to give up his business as a cattle-dealer, that ultimately, about February 1895, he entered the service of a dairyman named Hamilton as a milk van driver, since which date he had been living in a bothy where the male employees of the dairyman resided. A considerable amount of evidence was led with a view of showing that this bothy bore a bad reputation in the neighbourhood, and that prostitutes had been seen going into it. More particularly, it appeared that on 21st April 1896 the police, having been called in by the neighbours, two women were found in the house; that thereupon a disturbance arose, in which the defender took part, and that he was consequently charged at a police court held on 28th April 1896 and convicted of cursing, swearing, shouting, and using abusive, obscene, and threatening language to a residenter in the tenement of which the dairyman's house formed part. It was not proved, however, that the defender had anything to do with introducing prostitutes into the house, and it appeared that on the occasion of the disturbance he was in bed asleep at the time when it began, and that his anger was roused owing to his sleep being disturbed. The defender and a milkman, who also lived in the bothy, denied the allegations as to the character of the house, and deponed that prostitutes were never brought into it to their knowledge. The latter also deponed that he never saw a woman in the house except on the night of the disturbance, and that on that occasion the women were brought in by a man who was the worse of drink at the time and had since been dismissed from the employment. Certain other incidental facts in the case are stated by Lord Young.

With reference to the third act of adultery charged, Arthur Stewart, lamplighter, Glasgow, deponed—“In 1896 I resided in a house entering by No. 6 Love Loan. The house in which Hamilton's dairymen lived was in the same stair, and above me … I knew Wilson by seeing him in Love Loan. I remember seeing him one night in April or May 1896, between ten and eleven o'clock, in a recess about two yards into the close of the stair going up to the bothy. I was going through to the back court, and when I came to the recess a man stepped out into the close, and I looked at him and saw it was Wilson. There was a woman in the recess. Wilson stepped out from where the woman was. The woman did not have her dress up. Wilson's trousers were not disarranged that I saw. I formed no opinion as to what they had been doing; I just passed on. I don't know whether the woman in the recess was a prostitute. I had not seen Wilson in the company of prostitutes at other times. … (Q) With regard to the woman you saw in the recess, had you ever seen her before?—(A) I thought she looked like a woman I saw in LoveLoan, who accosted me as a prostitute.”

With reference to the fourth act of

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adultery charged, William Penman, private in the Royal Scots, deponed—“I resided for some time in 6 Love Loan, Glasgow, in the same stair as Hamilton's bothy. I was then a lamplighter. I knew James Wilson by sight. … I once saw Wilson in the company of a woman. I cannot say whether she was a prostitute or not. They were on the stair. I was going round extinguishing my lamps about four o'clock in the morning. Wilson and the woman were lying on the stair. They were pretty close together, side by side. I cannot give the date, but I take it to be about September. I extinguished the lamps at four o'clock in the morning in September. (Q) And in April also?—(A) No, 1 cannot say at what hour I put them out in April. (Q) Do you remember the month in which you saw him on the stair?—(A) I expect it would be about September. I am not sure whether it was not April or May. I think it was in 1895. (Q) Or 1896?—(A) Somewhere about that. There is a lamp in the stair, and I recognised Wilson. I did not see the woman's face. Her clothes were not up. They were lying close together. (Q) What did you think they were there for at the time?—(A) I could not expect they were there for anything except an immoral purpose. … Cross.—I have been away from Love Loan for about eighteen months. I left Love Loan shortly after the row when the policeman came. (Q) Then it could not be September 1896 when you saw Wilson?—(A) No; I think it was September 1895. … By the Court.—On the occasion when I saw Wilson and the woman in the stair they were lying side by side up and down the stair. They did not get up. I passed down at the side of them and they took no notice of me. I took them to be asleep, hut whether they were or not I cannot say. I am not sure whether it was before or after the row of which I have spoken, but I think it was about that time. I think it was September, because that would be about the time I was putting out the lights at four o'clock. I do not remember whether I put out the lights at four o'clock in April as well.”

With reference to this evidence the defender deponed—“I heard the evidence given to-day by Stewart and Penman. There is no truth in it at all. Such a thing never happened in either case.” He also deponed that he had to be up about a quarter to four in the morning to go to the country for the milk.

By interlocutor dated 7th January 1898 the Lord Ordinary ( Kyllachy) found facts, circumstances, and qualifications proved relevant to infer that the defender had committed adultery, found him guilty of adultery accordingly, and granted decree of divorce.

Opinion.—“I have carefully considered the evidence in this case, and I confess that I have had some difficulty as to the result, because there can be no doubt that the evidence of adultery is somewhat narrow. …

I have, however, come to the conclusion that there is, on the whole, sufficient proof that the defender committed adultery with a woman unknown in or about April or May 1896 in a stair leading to the dairymen's bothy, as described by the witness Penman. Assuming that Penman's evidence can be relied on, it is, I think, very difficult to resist the conclusion (which Penman at the time drew) that the defender and the woman seen lying beside him were where they were for an immoral purpose. It is not as if the defender was able to give some explanation of his compromising position. In point of fact he did not attempt to do so, but simply denied that anything of the kind occurred. So that, as I have said, the question really is whether I can rely on Penman's evidence. Now, as to that, I am bound to say that I saw no reason to distrust Penman. He gave his testimony as I thought very cautiously, and with no apparent desire to exaggerate. And although he was somewhat confused as to the date of the occurrence, he in the end was, I think, sufficiently clear that it was about the time of the row in the bothy, which was, we now know, in April 1896. Moreover, although not directly corroborated, there is this much of corroboration in the other evidence—(1) that the defender was about the same time seen by the witness Stewart in a somewhat suspicious situation, leaving the company of a woman in a certain recess near the foot of the same stair; and (2) that although not proved to be cognisant of the introduction of prostitutes into the house in which he lived, he yet did live in a house in which proceedings of that kind took place. I think the whole tenor of the proof, in this part of it, goes at least to make it not improbable that Penman's story is true, and taking it as true, it is, I have come to think, sufficient.” …

The parts of the opinion omitted dealt with the question of the custody of a child of the marriage, with which the opinions of the Court did not deal.

The defender reclaimed, and argued—Adultery was not proved. The only evidence that the incident from which the Court was asked to infer that adultery ever took place at all, was the testimony of one witness entirely uncorroborated. Evidence as to other facts and circumstances of a similar nature might be used to show the inference which was to be drawn from a particular incident, but the occurrence of the incident itself must be established by something more than the testimony of one witness. This case was ruled by Robertson v. Robertson, July 19, 1888, 15 R. 1001.

Argued for the pursuer and respondent—Adultery was proved. Where one incident was spoken to by one witness, and another witness spoke to another incident of the same kind and taking place under the same circumstances, that was sufficient evidence, if the nature of the incidents and the other facts in the case led to the inference that adultery took place— Whyte v. Whyte, March 15, 1834, 11 R. 710; Taylor v. Taylor (1848), 6 Notes of Cases, 558; Milton v. Milton, February 25, 1667, M. 12, 636, and see also M. 12, 101; Robertson v. Robertson,

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cit., was distinguished. The incident spoken to stood alone. Here the two incidents spoken to were of the same kind, and at the same place. There was also the fact that prostitutes were coming about the house. If the incidents were held proved, then the inference that adultery took place was inevitable, especially in view of the fact that, assuming the incidents to have occurred, the defender lied about them, for he did not offer any explanation, but denied that they ever took place at all.