Opinion
07-09-1890
PATTERSON v. PATTERSON.
John Y. Hawkins, for petitioner. Ely & Ransom, for defendants.
John Y. Hawkins, for petitioner. Ely & Ransom, for defendants.
This is a suit instituted by the husband against the wife for divorce up on the ground of adultery, alleged to have been committed with one Lloyd McKee, and with one William G. Romain, and with one Fred Lyons. The defendant denied all of the allegations in the petition. Her counsel insists that the evidence shows great neglect and indifference upon the part of the husband towards his wife, and that therefore the very clearest and strongest proof should be required before the wife is adjudged guilty, as was decided in the case of Derby v. Derby, 21 N. J. Eq. 36. The implication from this position taken by counsel is that the testimony which has been presented leaves the conduct of the wife not entirely free from suspicion. The counsel very properly admitted this when he was making the application for leave to amend the answer, by setting forth charges of like offenses against the husband, insisting, however, that the circumstances upon which such suspicions might rest are all susceptible of satisfactory explanation. And it may be that circumstances will present themselves to the court that will require the very highest degree of proof, or proof that is abundantly satisfactory to the mind, before the court would absolve the husband from his marital obligations; but my understanding is that in every case where the wife is charged with adultery, the court must be convinced that the wife has been guilty of the offense charged, and that when the testimony is such as to produce this conviction a decree of separation will be pronounced. If by neglect of the husband the wife is obliged to seek other society or associations, or to forego all intercourse with other men, and she does nevertheless embrace the ordinary opportunities that are afforded all females for enjoying social intercourse with the other sex, and the husband brings suit for a divorce, in such case, most evidently, the court would not adjudge the wife guilty if her innocence might fairly be inferred, or, in other words, if the testimony left the issue in reasonable doubt. In this case I think the testimony shows the conduct of the wife so loose, so defiant, and so unchaste as to leave no room whatever for hesitation in declaring her guilty. I will give but a brief synopsis of the testimony, but enough, I think, to satisfy every thoughtful mind that there is the very strongest possible foundation for a decree according to the prayer of the petition. The parties spent the first few months of the year 1888, at keeping house in Ocean Grove. The husband had his office in Asbury Park, and was, consequently, seldom at home during the day. They had in their employ a servant girl. She says that Lloyd McKee very frequently visited their house during their stay in Ocean Grove. In this she was corroborated by two ladies who lived just opposite, on a corner of a narrow street, and who had the very best opportunity for observation. They say that his visits there were two, three, and four times a week. Why did he make these visits at that house? It was not to see Mr. Patterson, for he knew he would not be found at his house. And, besides, it does not appear that he had any business engagements with Mr. Patterson. There were no persons occupyingthe house in the day-time except Mrs. Patterson and the servant girl. The servant girl says that when McKee came there he spent his time alone with Mrs. Patterson, and on one occasion in a bedroom, which she entered soon after they left, and found the bedclothes in disorder. Many other acts of like freedom and familiarity between McKee and Mrs. Patterson are incontestably established. And what has been proved with respect to her relation to McKee has been equally clearly shown respecting her relation to Romain and Lyons. Romain was undoubtedly often in her bedroom alone with her. He often would take her slipper from her foot when she would be swinging her foot. He would embrace her frequently, and kiss her, and put his hands upon her breast, under her clothes, rubbing his face against hers, making endearing remarks. On one occasion when Mrs. Patterson, Romain, and another young woman about 17 years of age were playing "hide and go seek," and Mrs. Patterson was the seeker, and had discovered Romain under the bed, she sat down on the floor passing her feet under the bed until she came in contact thereby with Romain. During this entertainment of each other there was a light in the hall up-stairs, but no other light in any of the bedrooms except such as might be cast therein from this hall light. After the play ended, and very late at night, the young lady referred to, Mrs. Patterson, and Romain all laid down upon the bed together. They remained in this position for about half an hour, he being between the women. She was seen in a boat with Romain, which they left, and went into a thicket of trees and under brush, a place of notorious ill fame in that community. She sent him letters by her servant, asking him to come to her house, telling the servant not to let her husband know, "for what he didn't know wouldn't hurt him."
McKee and Romain had known the parties to this suit for a number of years. Lyons made the acquaintance of Mrs. Patterson early in the year 1888. Lyons was and is a married man. His home then was, and for some time continued to be, Norwalk, Conn. He came to Asbury Park in the year last named to superintend the building of a street railway. Very soon thereafter he made the acquaintance of Mrs. Patterson. During his stay there he was seen with Mrs. Patterson under the pavilion on the beach, sitting side by side, with his head in her lap, while she was toying with his mustache. This was in the day-time, and in the presence of a number of citizens. At another time they sat together for their likenesses, and they had them expressed upon the same plate. This she allowed him to take, and he exhibited it to his friends, boasting of his conquest, and declaring that he meant to cultivate the opportunity which she had given him. He and she were both seen by two individuals on a public road beyond the sight of Asbury Park, going towards a thicket of trees and undergrowth. One of the persons who saw them followed after them, saw them turn into the thicket, and move on for some distance, when they halted. If his description of what he saw there took place, the crime of adultery was never more clearly established. She met this same man on Broadway, in the city of New York, by appointment. That this meeting was by appointment she communicated to the same young girl who joined in with them in the "hide and go seek" hilarity at midnight. And would she not communicate such fact to her? And had she not allowed Romain to put his hands upon her bare bosom? And had she not, in the dead hours of the night, lain prostrate on the bed with this same girl, for a half hour at the time, with Romain between them? Of course she would trust her secrets to this same girl. By her lewd conduct she had already confided much more to her. After they so met on Broadway, they walked a considerable distance towards East river, Mrs. Patterson asking the young girl to walk in the rear, saying she wanted to have a private talk with Lyons. They undoubtedly arranged for a meeting that night; and they met at the house where Mrs. Patterson and the young girl were staying, far up town. They went from this house together, saying they were going to the theater. They returned very late. They were heard by one of the inmates when they came in, but, not retiring for a long time, the person who heard them made an excuse to go out in the street, and on his way down-stairs encountered them in the dark, but after lighting a match was enabled to identify them. After this, Lyons and Mrs. Patterson agreed upon a correspondence, and arranged that all of his letters to her should be addressed in the name of a man who was stopping at this same house in New York city. Such correspondence was commenced and carried on. The man named did not open any of the letters, but handed them directly to Mrs. Patterson. After this suit was begun, this same man informed Lyons of it, and requested him to contribute money to enable Mrs. Patterson to make her defense. Lyons called afterwards upon Mrs. Patterson, in New York, and gave her $15. She says she did not ask for this, and did not want it, and at first refused to take it, but that he urged her to do so. When the other circumstances above related are considered, if there can be any stronger circumstantial proof of guilt than this, I am unable to conceive it.
As to one of these libertines, one of the witnesses swears that as he was passing along the streets of Asbury Park late at night, he saw McKee, and in a few minutes Mrs. Patterson. They met and moved on together, going to a place more public than private, but slightly, if at all, protected from public gaze, and there committed the crime of adultery. The defiance and boldness of this wantonness and lewdness is said to be so shocking as to be incredible. But the history of the depraved and abandoned is filled with acts of shocking brutality, which we know would never be recorded were they not as clearly verified as any other fact in the history of mankind. An effort was made to impeach the credibility of thewitness who described this scene, but the failure was most signal, and the unsuccessful attempt gave great additional strength both to the character of the witness and to his testimony. The witnesses who have testified to these things stand before me unimpeached. Except as above stated, the character of not one of them has been in any wise assailed. One of the severe tests of sincerity and truthfulness, that of cross-examination, was skillfully applied by able and experienced counsel, but only, as it appeared to me, the more efficiently and prominently to present the truth. Such being the case, I have no right to say that their statements were untrue; and, if true, guilt is established without the slightest shadow of uncertainty. The fact that the effort was made to impeach the character of one of the witnesses shows that the importance of this method of defense was not overlooked by the learned and skillful counsel of Mrs. Patterson.
Counsel insists that many of the acts complained of—such as kissing, and the taking of likenesses together, and the resting of the head of a married man in the lap of a married woman not his wife—are simple acts of indiscretion, and are very frequently indulged in in social intercourse in these modern times. I do not believe that society has become so degenerate. It is incredible to suppose that such acts are regarded as common events, or of constant occurrence, and considered of slight or no importance with respect to character, or consequent influence upon the individual indulging therein. Nor do I believe that they have become so open or notorious at Asbury Park, where these parties lived, as to be the subject of constant observation by every visitor or beholder. I speak of this, not to defend the people of Asbury Park but for the purpose of showing that if social intercourse in Asbury Park' has become so cyprian in its character as to regard the acts referred to as of slight consequence, counsel for defendant would have had no difficulty in proving to the court the multitudinous cases which he declared were daily taking place. The fact that there is an utter failure in this belief shows beyond disputation that Asbury Park is not in any sense subject to the unworthy charge. Since so much attention was given by counsel to the neglect of Mr. Patterson of his wife, perhaps I ought to refer to it somewhat more at length than I have. The only inattention or neglect that I can discover (if such it may be called) is his absence from her during the evening, many evenings in each week, and sometimes until late in the evening. It was this absence that gave the persons with whom Mrs. Patterson committed adultery the opportunity to meet her without discovery. Beyond this absence during the evening nothing whatever is shown that looks like neglect or a want of reasonable regard for her comfort and welfare. Before going to Ocean Grove, in 1888, she enjoyed the luxuries of hotel life, living in the best establishment in Asbury Park. If there was error on his part in this, it was that of too great indulgence allowed her in living without work, and without the care and responsibilities of a home. In the beginning of 1888, he provided for her a home in Ocean Grove. When they left this home, or soon after, they occupied one which he had for some time been building, and preparing for her comfort. In this it was that many of the scenes of most indecent familiarity referred to by the witnesses occurred. After a few months of residence in the home thus provided, they undertook hotel life again. I believe every unbiased person will agree with me that there is no proof of such neglect upon the part of Mr. Patterson as to justify his wife in taking the perilous position which she did with these paramours, and which, as I have found, led her to her destruction.
The attempt to prove the recriminatory charges, I think, has failed. The attempt to establish this charge against the husband was not suggested until after most of the witnesses upon the part of the petitioner had been sworn. The defendant then filed her petition asking for leave to amend her answer by charging that the defendant had been guilty of the crime of adultery on the 2d day of November, 1889. This was several days after the petition had been filed. The prayer to amend the answer was resisted upon two grounds: First, that it was not in good faith; and, second, that the answer could not be amended because the acts complained of had taken place since the filing of the petition. It is sufficient to say that the permission to amend was allowed, even though the act charged did take place after the filing of the petition, upon the ground that a party coming into a court of equity must not only come in with clean hands, but he must keep his hands clean during the progress of his suit.
The effort upon the part of Mrs. Patterson was to show that Mr. Patterson had gone to the St. George Hotel, in Brooklyn, with a woman not his wife, and registered under the name of "S. C. Clark & Wife, Buffalo, N. Y.," on the 2d day of November, 1889. One Oscar L. Britton was produced, who formerly lived in Asbury Park, and who was brakeman on a railroad train running by that place, and who occasionally saw Mr. Patterson on the train, prior to November last. However, he had not seen Mr. Patterson for several years. In his testimony he speaks quite positively of its being Patterson, but afterwards expresses doubt, saying that he only saw the side of his face as he was about registering, and that he did not see him afterwards, and after the person whom he took to be Mr. Patterson had registered, he, the witness, went to the door of the hotel, and in about five minutes' time he looked at the registry to see who it was that registered, not knowing whether any one else had registered in the mean time or not. Without discussing the merits of Britton's testimony further, I will turn to another branch of the testimony with respect to Patterson's whereabouts on the day named, from which such conclusions must certainly be drawn as will settle the value to be given to this defense. On the 2d of November, 1889, Patterson did not leave Asbury Parkuntil after 4 o'clock, and it is clearly proved that he went to number 203 East Fourteenth street, New York city. The witnesses, five in number, who speak with respect to his being there, were well acquainted with him, and were in company with him there. They took supper together, and soon after, and about 8 o'clock, they went together to a theater near by. From the theater they returned to the same place, where very late they retired for the night. The next day being Sunday, they arose very late in the morning. The same witnesses swear that Patterson was with them all night, and was there the next morning when they arose, and other witnesses swear that they saw him about the same time the next morning. Unless these several witnesses are entirely mistaken, or willfully speak falsely, Britton must be mistaken in saying that he thought he saw Patterson in Brooklyn. Nothing whatever has been suggested of sufficient moment to lead me to discredit the honesty of these witnesses, or the reliability of their memory. The length of time between the event and the giving of the testimony was only about seven months. The annual fall election was to take place in the city of New York the next Tuesday after such meeting, on the 2d of November, which was Saturday. The witnesses all say that there was a good deal of discussion concerning the approaching election. One of the witnesses says that he was clerk in the drug-store, in the rear of which the proprietor had sleeping apartments, and in which Patterson and the other persons referred to slept that night, and that he (the clerk) was obliged to stay in that night and to attend the store, contrary to his custom, because the proprietor wanted to go with Patterson to the theater. He says this restraint prevented him from doing some political work which he had expected to do that night, but which he did on Monday, the day before election. This witness, like the others, gave these reasons for identifying the day of the month with certainty and clearness. Another witness, who met Patterson there on the 3d of November, spoke with equal directness as to the identity of the time. He says he knows that it was the 3d because the 1st of November was his birthday, and it was after his birthday that he chanced to go to this place, and on reaching there found Patterson there. There is one circumstance in connection with the testimony of these witnesses, and especially the last witness, which counsel for Mrs. Patterson insisted satisfactorily proved that the day when Patterson went to New York was not the first Saturday in November, but the last Saturday in October. The last witness referred to who knows it was after his birthday, which was the 1st day of November, that he met Patterson at this drug-store, further speaks of the discussions of the coming election, and says that the next morning he went to Philadelphia, and that after reaching there he made up his mind to go back to New York and register, in order that he might vote the next day, but that when he got there he was told that registration had closed the Saturday previous. Now, while there is no sufficient proof, no such proof as the law required of such an event,—that, is when registration closed, —before me, this circumstance, if considered at all, is not to bear down or overcome the other direct testimony of this witness, and of the four or five others who agree in fixing the time referred to as the 2d and 3d of November. Besides, if the question is to be determined upon the certainty of recollection, then, the inquiry may well be made, does the witness recollect correctly what was stated to him when he returned to New York with respect to the period of time when registration closed? Was he told that registration closed the Saturday immediately previous, or on Saturday of the week before? Supposing that he was correctly informed, it was a circumstance that would not be likely to impress his mind except as to the fact of failure to register. And when the fact is considered that he may have been informed that registration had closed on the Saturday which would be the last Saturday in October, more than a week previous to his making the inquiry, and not on the Saturday immediately previous, and that he may have misunderstood his informant, or what is more likely, have forgotten the exact character of the information, it will be conceded that it would be departing from all rules to give greater prominence to this suggestion of counsel than to the testimony of all of the other witnesses who speak upon this point. The weight of testimony, therefore, requires me to conclude that Patterson was not at St. George's Hotel, in Brooklyn, on the 2d day of November, 1889.
An effort was made to show that the entry upon the registry referred to was in Patterson's handwriting. Having reached the conviction that he was not there on that day, it is quite unnecessary to consider the testimony with respect to the hand writing. But if the merits of the case depended upon the solution of the question whether that entry was made by Patterson or not, I would not hesitate in deciding that the testimony very strongly supports his denial. The allegation made in the answer as amended, that Patterson had been guilty of the offense of adultery, has not been established. I will advise a decree of divorce from the bonds of matrimony, in accordance with the views above expressed.