Opinion
04-07-1896
DUVALE v. DUVALE.
William B. Guild and Cortlandt Parker, for complainant. Charles H. Ivins, H. S. Terhune, and F. W. Stevens, for defendant.
(Syllabus by the Court.)
Action by Celine M. Duvale against Charles L. Duvale for divorce. Dismissed.
William B. Guild and Cortlandt Parker, for complainant.
Charles H. Ivins, H. S. Terhune, and F. W. Stevens, for defendant.
REED, V. C. This bill is filed by the wife to procure a divorce a mensa on the ground of the alleged extreme cruelty of the husband. Both husband and wife were bom in France. She, a widow, came to this country in 1870; leaving an only child, a son, at school. She appears to have supported herself by dressmaking. Mr. Duvale came to this country in 1873, made her acquaintance here, and they were married in February, 1877. Following their marriage, they lived in New York City for two years; then in Philadelphia for two years; then in New York, again, for nine years. They spent the summer of 1889 at the Atlantic Highlands, boarding at a Mrs. Thompson's. In the spring of 1800 they rented a part of a house, the other portion of which was occupied by Mr. and Mrs. McGarry, and remained there until April or May, 1801, when they moved into a new house which Mr.' Duvale had just completed at the Highlands. This house is still the residence of Mr. Duvale. Both resided in this house from May, 1891, until March, 1893, when Mrs. Duvale left it and went to a boarding house in New York City. In May, 1893, she began a suit for divorce in the city of New York on the ground of cruelty. On June 1, 1893, she resumed her residence at her husband's house at the Highlands. On April 17, 1894, while still living there, she filed another bill for divorce, in this state, on the ground of cruelty. She still remained in the house of her husband, with temporary absences, until October, 1894, when she finally left. A new bill was filed, on the same ground, for the same purpose, on December 21, 1894. This is the bill in the present suit in her bill, and upon the witness stand, she charges that soon after their marriage her husband began a course of conduct, towards her, marked by cruelty. The specific acts of which she complains are confined within the period of their residence at the Highlands. She says that while they were in McGarry's house, at the Highlands, in 1889, he struck her with his fists upon different parts of her body, and that this occurred more than once a week; that, about a month after they moved in their new house, he assaulted her with his boot, and told her that he wished she was dead; that in January, 1892, he broke an umbrella over her back, and got a gun and said he would shoot her; that while he was temporarily staying at the Hotel Normandie, in New York City, in February, 1892, she visited him, and he choked her; that in April, 1892, they were quarreling, and she ran downstairs, and he followed her, and got a rope and said he must tie her up, as she was crazy, and that he broke two parasols over her back; that in June, 1892, he kicked her; that in September, 1892, he struck her with a broomstick. She says that after she returned in June, 1893. he was kind to her for about a month, and then began a course of verbal abuse, teinng her that he was married to a Miss Hunter, and had three children by her, and charging complainant with intimacy with "other men, including a servant of theirs; that he left pictures and papers where she would be likely to see them, for the purpose of scandalizing and irritating her, and charged her with stealing his papers; that this conduct continued until she left the house. These, in substance, are the charges contained in thebill, and in the testimony of the complainant upon the witness stand. How far her story is supported by corroborative testimony, I will reserve for subsequent remark, with the exception of one feature of the testimony, viz. that, at different times during this period, discolorations upon her body, caused by violence of some kind, were seen by different persons whose testimony seems to be reliable. Indeed, it is scarcely litigated that she she did have upon her person these evidences of contusions. The defense is rested upon two grounds: It is first insisted that these braises were self-inflicted, either purposely or incidentally. It is secondly insisted that, even if they were inflicted by her husband, yet her conduct towards him was so cruel and irritative that it provoked his counter cruelty.
On the first branch of the case, it is insisted that the testimony shows that the complainant was entirely irresponsible, that she was possessed by illusions, that she believed in the existence of a condition of affairs which were entirely incredible, and that, therefore, her testimony in regard to the conduct of the defendant towards her is not entitled to belief.
It appears that in 1884 Mr. Duvale had been attacked in New York with typhoid fever, and that Dr. Henneman, for the purpose of relieving Mrs. Duvale from constant nursing, brought in a female nurse whose name was Hunter. Some time after his recovery Mrs. Duvale, so far as acts and talk expressed her thoughts, was impressed with the opinion that Mr. Duvale had formed a liaison with this Miss Hunter, that he had lodged her in a house in New York City, and that he had had, by her, three children. Out of this belief seems to have sprung another, namely, that Miss Hunter, together with her husband and others, were desirous of putting the complainant out of the way, and that they had formed a conspiracy, the object of which was to poison her. The testimony is plenary, that during all the subsequent period of their domestic trouble the complainant was constantly charging the defendant with this supposed connection. Now, I will here say, once for all, that there is not in the testimony a single circumstance to show that there was the slightest foundation for this notion. Mr. Duvale was during all this time the private secretary of a Mr. Kennedy, a banker, or of Mr. Kennedy's family. He spent his days at his office, and his nights at his home. His stepson says that, from an 18-years acquaintance with him, the conduct imputed to him is Incredible. But the negative evidence is still stronger that this notion of his faithlessness to her was the pure coinage of the complainant's fancy. As already remarked, she left her husband's house at the Highlands in March, 1893. She went to New York, and employed one Miller, a lawyer. Miller promptly put two detectives (one Simon, a man, and one Board, a woman) at work to discover the ways of Mr. Duvale's life. Miller afterwards filed the bill for divorce, already mentioned, in New York. The ground of complaint stated in the bill was, not the adultery of the defendant, but his cruelty. So in the trial of the present cause the defense was put forward that this notion of hers, that her husband was guilty of profligate conduct, was so baseless that it must have been the product of an insane mind; that therefore her charges of cruelty should be regarded as the offspring of the same disordered fancy. Now, the force of this line of defense could have been entirely dissipated at once by showing that what the complainant stated to be true was true, or by showing that there was exhibited in his conduct something would have reasonably led her to believe it to be true. The effect of such testimony was, of course, perfectly obvious to the intelligent counsel who conducted her cause; but neither the testimony of Mr Miller, of the detectives, nor of any other person, was produced to show the existence of a single circumstance from which such a belief could have rationally been evolved. How she became possessed of this idea can be only inferred. She was several years older than her husband, and it was probably the offspring of some, real or fancied absence of those affectionate attentions which she craved as a wife. She seems to have been jealous of women Other than Miss Hunter. Her son says that, as far back as when they lived in Philadelphia, she accused him of intimacy with a woman canvasser who worked for them in their publication business. After they returned to New York she accused him of having improper relations with a girl named Mary Jane, who worked in the millinery store in the same building. She accused Mrs. Thompson, at the Atlantic Highlands, in 1893, of having a woman at her place for her husband. She made the same charge against Mrs. Pamley. In 1894 she discharged Mrs. Whitmore, a female servant, because she said Mr. Duvale had conversed with her. She charged him with giving in marriage to her son a cast-off mistress. Upon the witness stand she accounted for the origin of her belief in his criminal conduct with Miss Hunter, with her daughter-in-law, and of his complicity with the conspiracy to poison her, by saying that he was his own accuser. She says, in respect to her knowledge of each of these matters, "He told me so." But this assertion is refuted by her own conduct throughout the entire period, for it appears conclusively that, long after she had become possessed with these illusions, her strongest endeavor was to get him to confess them. No denial on his part satisfied or appeased her excited mind. What she wanted from him was a confession. In September, 1892, Dr. Andrew was called in to attend her. Between that date and December, 1893, he made 99 visits. At every visit she would detail to him the crimes of her husband, hiscruelty, and his profligacy. He describes one scone between them, in which she frantically urged Mr. Duvale to confess. Then, after he had endeavored to quiet her in every other way, he, following the advice which the doctor had given him (not to excite or oppose her), said, "Yes, there is a woman in it," and then she quieted down. The doctor said that, while she constantly charged her husband with the acts mentioned, she never told him that her knowledge of them came from her husband. Another circumstance showing that she did not derive her notions from the admissions of her husband is this: She left her husband's house in March, 1893, went to New York, as already stated, and engaged Mr. Miller, the lawyer, who filed the bill for divorce. She was persuaded to return by Dr. Andrew and Mr. Ivins, who visited her on behalf of her husband. At that time she was anxious to have Miss Hunter arrested and punished, and appealed to Mr. Ivins, as prosecutor of the pleas, to prosecute her. Mr. Ivins told her that they could not do so without an affidavit, which affidavit Mrs. Duvale consented to make. In the affidavit, in stating the source of her information as to Miss Hunter, her acts, and her relations with Mr. Duvale, instead of declaring that Mr. Duvale had told her all this, she stated that her information was derived from Mr. Miller. Indeed, from the whole body of testimony, it is, to my mind, entirely apparent that her belief in the existence of her husband's criminal relations with Miss Hunter, and the poisoning conspiracy, sprang out of a condition of mind so jealous—either rationally or irrationally jealous—that, to her, "trifles light as air" became "confirmation strong as proofs of holy writ." Now, out of this mental condition of Mrs. Duvale absorbed as her mind seemed to have been with this notion of her husband's faithlessness and crime, flowed a succession of scenes between herself and her husband, of the most painful kind. From the time they went to the Highlands to the time she left her husband, such scenes were of frequent occurrence. For hours in the night her voice would be heard in high, querulous tones, and his in more subdued tones. Then she would sob and moan or scream. Then they would pass downstairs and upstairs, and sometimes around the house, he preceding and she following. On one occasion while conversing with him, she suddenly arose, threw her parasol down, and jumped into a pond of water. I have no doubt that all these scenes were the result of her constantly reproaching him on the one absorbing subject which filled her mind. Her emotions found vent, not only in these frenzied acts, but in blows. Much of all this testimony is that of servants employed by the Duvales, and such testimony must be discounted by their relations to or affection for one or other of the parties; but their testimony in regard to this strange conduct of the wife was so corroborated by other witnesses that it cannot be doubted that during all this time she was in a highly-excited condition, that she was continually approaching her husband upon this irritating subject, and that she was frequently irritated to a degree that led to violent conduct upon her part.
Mrs. McGarry, who lived in part of the house occupied by the Duvales in 1890, tells of her frequent fits of screaming, and also how, on one occasion when Mr. Duvale had made an arrangement to go gunning with one Weaver, Mrs. Duvale tried to prevent him from doing so, and followed him, and, as she did so, slapped him in the face. The same witness states that on another occasion Mr. Duvale rushed into their apartments, where he was followed by Mrs. Duvale, who commenced to talk to him about her son and her son's wife, and that after they left Mrs. Duvale was screaming and crying all night. She tells of another occasion when the witness was attracted by what she thought was the smell of smoke, and she went around the house, and looked in the window, and saw Mr. Duvale sitting with his head in his hands, and Mrs. Duvale sitting at a table, scolding and hitting the table with her hands, while the lamp chimney was smoking. Mr. McGarry, the husband of the former witness, repeats the story of this same instance, and tells also of another occasion when Mr. Duvale was sitting on a bank, reading a newspaper, and she was by him, and suddenly he heard a screech, and the witness saw her strike Mr. Duvale on the head with a parasol, who then jumped up, took the parasol, and threw it upon the bank. George Thompson says that in 1893, while Mr. Duvale was talking to the witness at the witness house, Mrs. Duvale struck her husband, and knocked him down the steps, against the rail; that Mr. Duvale came back, and said that he was not going out to be murdered, and Mrs. Duvale said that she did not strike him, and exclaimed, "Did you slip, Charles?" Charles Yetman, who helped paint the new house, called several times in 1891 to borrow some money from Mr. Duvale. On one of these occasions, Mrs. Duvale went upstairs to call Mr. Duvale. The witness says he heard talking upstairs, and he looked up to see Mr. Duvale come down, and as he did so he saw Mrs. Duvale strike him, and then she came down and said that the witness could not see him. One Layton says that once, when he was building a fence for Mr. Duvale, he saw Mrs. Duvale strike him with a parasol. His attention was first called to it by hearing her screaming and "hollering." Susie Fitzgerald, who worked for the Duvales from December 21, 1892, to May 5, 1893, says that she saw her go into her husband's room, when he was sitting at his desk, and fight him; that she saw her jump up, go in his room, and hit him on the back of the head; that she saw Mrs. Duvale throw a bowl of soup at him. and at other times she chased him with a knife which she got out of thepantry case as she ran; she chained the door, and he broke the chain and escaped. This testimony of Mrs. Fitzgerald is said to be impeached by the testimony of Mrs. Lewis. Mrs. Fitzgerald denied upon the stand that she had ever said that she saw Mr. Duvale strike Mrs. Duvale, and Mrs. Lewis says that she told her that she did see such an act. Carter Fitzgerald, who was working for Mr. Duvale during the same period, says that he saw her beat him in the back with her fists and with a stick. In September, 1894, while divorce proceedings were pending, and while he knew male and female detectives were shadowing him, Duvale returned to his house, and found a lady waiting there, who was unknown to Mr. Duvale, but who was a friend of Mrs. Duvale, and had come to visit her. Mr. Duvale sent for a constable, who was in Mr. Duvale's room when Mrs. Duvale afterwards returned home. Mrs. Duvale entered the room, and ordered the constable out of the house. Mr. Duvale refused to let him go, and ordered her out of the room. She went out, but afterwards returned, and again ordered the officer out. Mr. Duvale thereupon attempted to remove her, and she struck him with a teacup which she held in her hand, cutting his nose. This act is sworn to by the officer, and its consequent injury by Dr. Reed, who found him with a cut nose and a crushed thumb. She denies flatly that she ever intentionally struck him, but the testimony is overwhelming that she did so repeatedly during the period of their troubles.
Having now reviewed the mental condition and acts of the complainant during the period included within this investigation, it is necessary to recur to the conduct of the defendant, for the purpose of ascertaining whether it is proved that he inflicted personal violence upon the complainant, and, if so, whether the defendant's cruelty is the natural and probable consequence of matrimonial ill conduct in the complainant, and whether the degree of the husband's violence was disproportionate to the wife's offense. In considering the question whether the bruises which were seen upon the person of the complainant were inflicted by the defendant, I shall entirely exclude the testimony of the complainant herself. Her wholesale denial of facts which are proven beyond all question would alone discredit her statement. Nor is the testimony of those witnesses who swore that, she, at different times, complained to them of his violence, of any force whatever to prove the existence of such violent acts. While these statements of hers were relevant to show her condition of mind, they were entirely irrelevant to prove that the facts stated really existed. The direct testimony of his acts of violence, aside from the appearance of the contusions upon complainant's body, is to be found in the testimony of Fanny Lamboley and Rosalie Lehner. Mrs. Lamboley lived in the family for period of eight months from January 25, 1892. She swears that on one occasion Mrs. Duvale took a parasol to go out doors, and that Mr. Duvale took the parasol away from her, and with it knocked her on the back. She says that Mrs. Duvale then got another parasol, and followed Mr. Duvale into the garden, where he had gone, to try to make peace with him. She says that on the morning of the same day, having been quarreling part of the night, Mr. Duvale put a rope around his wife's neck, in the dining room, and told her that she was insane, and that he wanted to send her to an asylum. Witness says that she helped untie the rope. Miss Lehner knew the complainant in Paris, and visited the Duvales in January, 1892. She says that one day, Mr. Duvale having been sick, he and his wife started to go out for a walk, and then Mr. Duvale changed his mind, and would not go, but, instead, went upstairs; that Mrs. Duvale went after him; that, after they had been talking some time, Mrs. Duvale came out of the room, with a quick step, and Mr. Duvale after her, with an umbrella in his hand. He said, "You infernal beast. I will shoot you;" and then he struck her over the shoulders, and took the umbrella and broke it. She says he then went downstairs and fetched a gun, and came upstairs with it, and "I asked him what he was going to do with it," and he says, "I will shoot her," and the witness then took the gun from his hands. Witness says that he thereafter abused Mrs. Duvale at the dinner table; calling her opprobious names, and Charging her with stealing his wine. He also called witness a sneak and spy, and took her wine and threw it in the chimuey. Mr. Duvale attacks the credit of Fanny Lamboley by saying that he overheard his wife and the witness concerting a scheme to fabricate a case against him. Aside from this story, it appears that Mrs. Duvale promised to take Mrs. Lamboley with her if she returned to France. As to Rosalie Lehner, she charges Mr. Duvale with having lost some money of hers, left with him for investment.
Aside from the testimony of these witnesses, the evidence is inferential. The principal instance of this kind is that detailed by Amanda Linning. She was working for the Duvales in 1892, and one day, while in the kitchen, she heard Mrs. Duvale screaming, and heard something fall heavily in the dining room. Then Mr. Duvale came running into the kitchen holding a towel to his face, and said, "Do what you can for Mrs. Duvale." Witness found Mrs. Duvale sitting in the chair, in a collapsed condition, and when Mrs. Duvale revived she said: "Charles intends to kill me. What shall I do?" She says that on another occasion she heard Mrs. Duvale screaming, and calling the witness to come quick. Witness went up a few steps, and looked up and saw Mr. Duvale; that he had something in his hand; she did not see what it was. Witness put on her shawl, and left the house without seeing Mrs. Duvale. andafterwards returned with her husband, and went into the kitchen, where she saw Mrs. Duvale, and that she had a bad bruise and a black eye. Witness says that her bruises were very heavy bruises. These seem to have been the bruises which Dr. Andrew saw when first called, and the bruises which were seen by Mrs. Allen. Then there is the testimony of other witnesses that discolorations were seen upon the person of the complainant. Susie Fitzgerald, Rachael Whitmore, Miss McCormick, and George Branning all say they saw bruises and discoloratious on the arms, or on the arm and body and ankles. The defendant denies having ever inflicted any blows upon his wife. The two incidents, sworn to, of his having struck her with parasols, he claims are distorted. He says that, instead of striking her, she attempted to strike him, and that he grasped and broke the parasols when she struck him. The existence of the rope incident he denies, and the gun incident he also repudiates, stating that he kept his gun upstairs, and therefore would have had no reason to go downstairs for it, as he is charged with having done. The falling in the dining room he asserts happened in a fit of hysteria, and he denies ever having struck her with a broomstick, as she swears he did at the time when Miss Linning says she saw something in his hands at the head of the stairway. In regard to the existence of the bruises, the theory of the defense is that they were received by her in her hysterical fits, when she would throw herself violently against a door or other object. Now, undoubtedly, there is testimony to show that she sometimes would fling herself against the door of her husband's room, in a way which could have resulted in these contusions. Mrs. Fitzgerald speaks of her trying to break the door when she was living with them in 1892 and 1893. Rachael Whitmore was there in 1894, and says that Mrs. Duvale would throw herself, and the witness took hold of her on one occasion so that she would not get hurt. Julius Ferry, who worked there in 1891 and 1892, and still works for Mr. Duvale, says that he saw her break the lock of the door; "she pushed" (indicating how she pushed. Mr. Duvale was then inside his room. Mrs. McGarry speaks of her acts in this respect when living in a part of her house. Dr. Van Mater, who attended Mr. Duvale from March to May 4, 1893, says that once, while in Mr. Duvale's room, Mrs. Duvale threw herself violently against the door.
So much for the method by which it is alleged these contusions might have occurred. Of the appearance of these discolorations on the body of the complainant, there is this to remark: The principal incident relating to them is the occurrence of 1892 when Dr. Andrew was called in. The testimony of Mrs. Duvale is that these bruises were made by a broomstick in the hands of her husband. Dr. Andrew, while speaking cautiously, is obviously of the opinion that they were not made by a stick. He speaks of the discolorations as being diffused, and as being such as would be made by impact with a flat surface. Then, again, it is observable that while Mrs. Allen says she saw evidence of discoloration and contusions three or four times, different times, Dr. Andrew, who was in attendance upon Mrs. Duvale from September, 1892, to December, 1893, although there was constant complaint of cruelty, was never again shown any evidence of it, in the shape of discolorations. She had consulted Dr. De Plasse for a long time previous, had complained to him of her husband's cruelty, and, as she says, had once exhibited to him marks of violence. The doctor says that while she did, on one occasion, complain of her husband's cruelty, he does not say that she ever exhibited to him any discolorations. There is another observation to make: George Branning, a witness for the complainant, testifies that in the fall of 1893, while he was delivering groceries, as I understand it, at the Duvale house, she exhibited to him bruises upon her face, arms, and her ankles. Now, it is remembered that the complainant first left her husband's house in March, 1893, and neither in her bill nor upon the stand does she charge upon her husband a single act of physical violence after her return in June, following. She says that he treated her kindly for one month, and after that his violence consisted entirely in verbal abuse. The inference is that the bruises which she showed to Mr. Branning could not have been the result of Mr. Duvale's violence.
It is insisted on the part of the complainant that there is proven other conduct of the defendant, which, while not amounting to personal violence, yet shows that he was of an irascible and malignant disposition, and that this conduct not only rendered it probable that he resorted to physical acts, but, together with such physical cruelty, makes up that degree of cruelty which should be regarded as extreme. The scene when he took the wine from the table, after the fracas with his wife in his room during the visit of Miss Robinson, and the scene of the same character when Miss Lehner was visiting at the Duvales, have been already mentioned. Then it appears that when Mrs. Duvale left the house and went to Mrs. Lewis, in March, 1893, Mr. Duvale employed officers to watch her movements. She says that he told the officers that she was crazy, but he and the officers deny the last statement. Then she and Mrs. Lewis say that Mr. Duvale accused the complainant of stealing his papers. Then it also appears that Mr. and Mrs. Duvale bad agreed to make, and had made, wills in each other's favor, and that she had afterwards revoked hers and informed him of that fact. In addition to this, there is evidence that in their quarrels he used vituperative language towards her. She also says that in his anger he broke a music box, a clock, and a writing desk. He denies al)of this, except the breaking of the writing desk, which he says he broke because she had taken the key belonging to it, and so had access to his papers therein. All this is relied upon to show that he was in a mood to be ugly. Then there is another series of acts which are relied upon to show malice towards the complainant. While she was at Mrs. Buchanan's, after she had left her husband's house, in March, 1893, she received a letter informing her that, if she wished to see her husband with the woman she was looking for, "Go to-night to Hoyt's Madison Avenue Theater, seats D. 2 and D. 4, they will be there. Wednesday H. S." This communication, written in a feigned hand, was admittedly sent by Mr. Duvale. In response to it she went with a friend, and found Mr. Duvale there with the young man who was acting as his nurse. His explanation is that he was then trying to open up communication with her, to get her to return; that several letters which he had addressed to her at Mrs. Buchanan's had remained unanswered; and that this was a decoy letter, for the purpose of ascertaining whether she was at Mrs. Buchanan's, and had received his letters. I think this explanation is true, for all the evidence shows that after she left his house he was using every effort to induce her to return, and he certainly would not, at that time, have purposely estranged her by tantalizing conduct. She says, also, that in the summer of 1893 she found on the table in the hall the following paper: "April 18, '93, to Sept., 1893. She was seen driving many times in company with men, always in a carriage with one seat, only one man at a time. Names of some of the men: (1) Harry Simon. (2) Emile Helle. (3) HelleHelle's brother. (4) Burge's coachman. (5) A man she picked up at Thompson's hotel. Was seen many times going in liquor stores, bar-room. She sometimes stayed all night. In June, July, and August, 1892, she had a nice young Scotchman, name James, but his Bister came as servant, and remained only one month. She most likely knows more about what was going on in my house than I do. They were both kicked out by her. His sister objected to his conduct with ——." Indorsed, "Stolen." She says she found in the same place, in the summer or fall of 1893, another paper, as follows: "Mrs. Duvale's first husband is waiting for her to get a divorce from Mr. Duvale. Mr. Miller, Mr. Simon, and Miss Board have been paid by Mrs. Duvale to manufacture evidence against Mr. Duvale. They will help Mrs. Duvale to land where she ought to be. The rich widow hopes to get free. Trenton will settle her in due time. Lawyer Guild, a good old soul with 40 years' practice; right kind of a lawyer for scandal. Mrs. Allen, a church beggar. Mrs. Buchanan, a divorced woman. Miss Lehner, a cranky old maid. Miss Lewis, boarding-house keeper, half blind. Mrs. Lamboley, servant who was promised money to swear to anything to help Mrs. D. to get rid of her husband No. 2. Mr. Helle, the manservant who take care of Mrs. D. Mr. & Mrs. Comstock, an old fool with a sharp wife. Mr. & Mrs. Oakes, a liquor dealer where Mrs. D. meets her friends, male and female, especially men." Mr. Miller was the lawyer who was employed in New York, and Miss Board was the female detective. In 1894, she found a paper as follows: "(1) Harry Bullard. (2) Judge O'Brien. (3) A lawyer recommended by Dr. De Plasse. (4) Senator Applegate. (5) Isaac N. Miller. (6) Dear Old Guild-Lawyers known to whom she applied for divorce. (7) What a misfortune she has not been able to manufacture a woman. (8) She comes now with a complaint of cruelty during 1892-1893. (9) It took 9 months to Dear Old Guild to find out the cruelty. (10) She only went to see him 3 to 4 times a week from October, 1893, to May, 1894, to tell him what contains her complaint, which is nothing else but a pack of lies. (11) I hope Dear Old Guild don't drop her as the other lawyers did. (12) The cranky old maid having failed to make me leave Miss Moutenot —(13) Her letters to me will show her for what she is worth. (14) Fight between Guild & Miller. (15) What about the affidavit sworn to district attorney about woman, children, and poisoning." Indorsed, "Stolen." Miss Moutenot was the maiden name of Mrs. Duvale. She says she found in 1893 the card of Simon, and, in the handwriting of Mr Duvale, written on it, "Mrs. Duvale, escort, March, April, and May, 1893, Henry Simon, detective, No. 293 Broadway, New York City," in the corner, interlined, "Miss Moutenot." Then she says she found pinned on her bedroom door a pair of gold sleeve buttons attached to a piece of rubber, to which was attached a picture of a skull with a serpent coming out Of its mouth. These sleeve buttons she had given to him; that she also found on her bed a mutilated photograph of herself, with the caricature of a Jew, drawn by Mr. Duvale. And then she found inside the frame of Mr. Duvale's door another mutilated photograph of herself, by Mr. Duvale. She found these in 1894. Then she says she saw in September or August, 1893, written upon the looking-glass in his room, with soap, "H. H. Helen's three little boys."
In respect to these papers, Mr. Duvale claims that they were all locked in his own desk; that he had written them as a memorandum for his lawyer, Gen. Wingate; that the soap writing was an expression' of his own emotions, which he thus gave physical expression to in his own room, which Mrs. Duvale did not occupy, and had no occasion to visit. He further says that Mrs. Duvale took these papers from his desk, and, as already remarked, because of her taking the bundle of keys belonging to it, which bundle had been left in his desk and had disappeared, he broke the desk. Now, whether Duvaleleft these papers on the table, I doubt, but I have no doubt at all that Mrs. Duvale went through the papers in his desk, for, in her suspicious moods, she would not hesitate a moment to search any receptacle in which she thought it might be possible to find letters or other incriminating matter. At the same time, whether these papers were abstracted from his desk, or were placed by him in the hall, I have not the least doubt that the letters were written for the purpose of meeting the eyes of his wife. Now, it cannot be denied that the manufacture of these papers was a contemptible and stupid act. It was the act of an angry, petulant boy, rather than a mature man. Indeed, the whole case shows that he was a man of nervous temperament, changeable in his moods, easily affected by domestic nagging, and without the poise to act with dignity as well as restraint. To correctly measure the import of his acts, however, it is necessary to take account of his surroundings. The complainant had left her husband's house in March, 1893. The first bill for divorce had been filed in New York in May, 1893. When it was dismissed does not, I think, appear. She was at her husband's house several times in the interval between leaving and returning, in company with Mr. Simon a detective. He was a Hebrew, which fact gives point to the picture which she says she found on her bed with her mutilated photograph. At one visit this detective was so intoxicated that Mr. Duvale's physician would not allow him to come into Mr. Duvale's sickroom, and Mrs. Duvale, for this reason, then left the house with Simon. Simon stayed for a time at Mrs. Lewis', and Mr. Duvale evidently thought that Mrs. Duvale was there at the same time. Dr. Andrew thinks that once Simon left his office in a buggy with Mrs. Duvale and Miss Board. In April the bill in New Jersey was filed. After the filing of that bill she still remained in the house, until the following October. During this time she was still full of the Hunter poisoning plot. He, of course, knew that the suit for divorce was pending. He knew that he had been shadowed by detectives, and he undoubtedly supposed that Miss Robinson was a detective, when he called in the constable. That he was anxious to avoid a divorce suit, is apparent. That the scandal of their separation was so harassing as to cause his sickness, is clear. Now, all the letters which he wrote to her after she left, in March, 1893, entreating her to return, saying that he had not been all that he ought to have been, goes to show this. The import of these letters was that he had not treated her as considerately as he might have done; that he had been hasty in temper. But they did not necessarily imply that he had been guilty of extreme cruelty. The preceding letters were written to placate her, and they were written, naturally, in strong language. In respect to the papers which he drew, and left so that they could come under her eyes: They were, I think, mainly for the same purpose, although intended to operate in a different direction. They were intended to present to her mind the features of her case, both as to the influences which had induced her to file her bill and to prosecute it, as well as the matters which would be exhibited upon the trial of the case. It is probable that he had heard or seen something which led him to fancy that the contents of these papers might be proved, and that there was that in her conduct which would give color to the charges contained in them, and therefore the papers would convince her that, if these matters were developed upon the trial, it would present a very unpleasant picture. Now, the charges against the moral conduct of Mrs. Duvale are unsupported by a single circumstance. Her act in traveling in company with the detective was eccentric, and calculated to annoy her husband; but, as it is explained, it is stripped of all suspicion of immorality. I have now set forth all the facts which seem to me to be of evidential force in solving the question in hand.
In respect to whether the defendant ever inflicted physical violence upon the person of his wife, the case stands about as follows: The testimony of complainant's witnesses is not very satisfactory, in the light of all the circumstances which surround them, and which surrounded the parties to this suit. But it is clear that the defendant was irascible, nervous, and impetuous. It is equally clear that he was constantly nagged, by having his alleged connection with the Hunter woman dinned into his ears whenever he entered his home. This, I am sure, led to quarrels between the parties, in which quarrels he had at times ejected his wife from his room. In doing so it is quite likely he took hold of her by the arms, or by the shoulders, and pushed her out with force. The grasp of the hands of an angry man probably left discolorations upon her arms and shoulders, or it may be that in the struggle she was pushed against the frames of the door, or against the door itself, or against a bedpost, or other furniture. As to the gun and rope incident, it may be that in a gust of passion he did that which is testified against him. It is, however, observable that in neither instance was the violence carried beyond a threat which stopped short of any physical injury. While there is a possibility that she received the contusions by throwing herself, in her paroxysms of excitement, against doors or furniture, yet. I am inclined to think that, to the degree which I have indicated, the probability is that the defendant did use physical force. But I think that it is clear, beyond all question, that, if the complainant is to be regarded as a rational person, her own conduct has shut her off from making any complaint against her husband. Says Mr. Bishop: "Where the defendant's cruelty is thenatural and probable consequence of matrimonial ill conduct in the plaintiff, the divorce will not be granted. A wife's remedy in such case is in her own power. She has only to change her conduct. Otherwise the wife would have nothing to do but to misconduct herself, provoke the ill treatment, and then complain." 1 Bish. Mar., Div. & Sep. § 1641; Coles v. Coles, 32 N. J. Eq. 547. In measuring the relative degree of violence, regard must, of course, be had to the sex and strength of the parties. What would be cruelty in the man would not be so in a woman, and what would be adequate provocation to violence would differ in respect to whether the provocation came from the husband or from the wife. So regard must be had to the degree of violence inflicted, for it must not be out of proportion to the provocation. 1 Bish. Mar., Div. & Sep. § 1644. Applying this well-settled rule to the facts of this case, it is obvious that, if the complainant is a responsible person, she is precluded from complaining of her husband's conduct. It is to my mind entirely clear that all the troubles which have embittered the domestic life of these parties have had their origin in the unjust charges and reproaches of the wife against her husband's fidelity to her. Indeed, the facts proved seem to make a counter case for divorce; for her charge against her husband, that he was the father of her son's child, taken together with the acts of frenzy and personal violence already enumerated, are sufficient to base a decree for a partial divorce, even although such charges are the offspring of an insane delusion, if such insane delusion does not amount to dementia. Smith v. Smith, 40 N. J. Eq. 566, 5 Atl. 109. Therefore I again observe that, if the complainant is sane, she has no footing to ask for a decree. If, however, the defendant was guilty of inflicting corporal and verbal abuse upon his wife, knowing that she was insane, and knowing that her provoking conduct resulted from mental disease, the case would wear an entirely different aspect. I believe that the defendant did not consider his wife in the light of an insane person. In all things other than her belief in the existence of the mistress and the children, and the plot against her life, she was entirely rational. Upon the witness stand she delivered her testimony quietly, deliberately, and intelligently. Aside from the inherent improbability of her story that her husband accused himself of the crime and immoralities imputed to him, her story was quite persuasive. She convinced Dr. Andrew, for months, that her charges against her husband were true. I have no doubt that she, in the same manner, impressed her lawyers with the truth of her tale of wrongs. Now, it is to be remembered that her husband had lived with her over 13 years; that he knew her jealous temperament, which had been manifested early in their married life. To him her conduct from 1889 to 1894 obviously appeared as a more violent manifestation of that jealousy which never entirely slept it is true that Dr. Andrews says that he spoke to Mr. Duvale about sending her to some institution where she could be cared for; but the retreat he mentioned was not an insane asylum, but a hygienic retreat it does not appear, indeed, that he spoke to him of her as insane at all. It is also said that Mr. Duvale called her "crazy," and said that he was going to send her to an asylum. If he said this, they were obviously words used in anger, to stigmatize her odd and eccentric conduct. That he could not have deemed her mentally deranged seems to be clear from his property dealings with her. He had made to her the deeds of the lots whereon he erected his present home at the Atlantic Highlands. He improved this property up to a value of $50,000. He gave her another cottage at the Highlands which rents for $25 a month. He deposited in her name, in a bank, $4,000, which appears to have been indirectly the outcome of stocks which he had given to her. On her return in June, as I understand it, he had made to her other papers, about which there is pending a dispute in another suit. In the light of all this, it seems ridiculous to conclude that the defendant, during the period of these transactions, thought his wife to be insane.
But at this point another question is suggested. Suppose that although the defendant, from long cohabitation with the complainant, and from a layman's inexperience in mental disorders, reasonably thought the complainant responsible for her acts, and nevertheless the testimony 'is convincing that she is, by reason of mental disease, irresponsible; in such a condition of affairs, would her conduct preclude her from a decree? This question, so far as I am aware, has never been judically answered. If the question is to be considered with respect to the husband alone, it would seem an injustice to visit upon him the disgrace and burden of a decree branding him with extreme cruelty, when his conduct was the result of human passions induced by adequate provocation. If, however, the policy which underlies the granting of divorces upon the ground of extreme cruelty is kept in view, the case wears a different aspect. The ground upon which such divorces go is that marital cohabitation, with the performance of its attendant duties, is impossible when one of the parties is put in a condition of bodily fear. Now, as has been already observed, when the wife is the complaining party, and it appears that she, by her own conduct, has provoked the cruelty of which she complains, she is denied relief upon the ground that she has it within her own power to relieve herself from fear, by ceasing to continue the provoking conduct which induces the acts from which her fear springs. It would seem to follow that, if it should appear that her power of self-restraint was so impaired by mental disease that she could not ceasefrom her provoking acts, then those acts should not be set up against her. I do not propose, however, to lay down a general rule in regard to the condition of affairs thus mentioned. From my point of view, the complainant was not so mentally disordered as to be incapable of restraining herself from the commission of the several enumerated acts towards her husband. It is not pretended that she was afflicted with general dementia. All that can be said is that she was apparently under a delusion concerning the existence of the liaison, the children, and the plot. Now, it is true that she seems to have assumed the existence of certain facts, touching her husband's life and conduct, upon no rational basis whatever. As to those facts, so far as appears in the testimony, she was under a delusion. But the existence of delusion is not necessarily evidence of mental disease. Belief is rarely the consequence of strictly logical processes. It is either partially or entirely the outgrowth of education, bias, affection, fear, or some other influencing passion. We believe what we wish to believe, and what we are in the mood for accepting as true. The same evidence which to one may be convincing, to another may seem absurd. Now, the complainant was undoubtedly in a morbid condition of mind. She was influenced by a long-existing feeling of jealousy. Her suspicious mind was in a condition to seize upon the slightest figment of fact to prove the truth of her suspicions. She remembered the Hunter woman, and the fact that this woman had nursed her husband. This, in connection with her suspicions that her husband was seeking women other than herself, afforded the skeleton upon which she erected her apparently unreal theory. Whether this was ever more than a suspicion in her mind is doubtful. She stated, as a witness, that, although her husband had repeatedly confessed them, yet she could not say that she believed in the truth of these acts until so informed by Mr. Miller in 1893. If she did believe them, and such belief was the result of mental disease, yet it cannot be claimed that the disorder extended beyond such belief. She was sane enough to know that for such marital conduct by the defendant she was entitled to a divorce, and sane enough to know that the domestic quarrels were the consequence of her own charges, reproaches, and violent conduct. 1 am therefore constrained to regard her as responsible.
My conclusion, upon the whole case, is that taking into account the degree of the husband's violence, as I have found it, taking into account a doubt (in view of her acts towards him) whether she was ever in an actual condition of terror, and taking into account the fact that his conduct was provoked by the conduct of the complainant, for which she was responsible, I shall advise a decree dismissing the bill, but, as in Coles v. Coles, supra, without prejudice.