Opinion
04-26-1912
SEIBERT v. SEIBERT
Ralph E. Lum, of Newark, for complainant. Geo. H. Lambert, of Newark, for defendant.
Suit by Catharine L. Seibert against Henry F. Seibert for maintenance, in which defendant filed a cross-petition for divorce. Judgment for defendant in the principal suit and on the cross-petition.
Ralph E. Lum, of Newark, for complainant.
Geo. H. Lambert, of Newark, for defendant.
STEVENS, V. C. This is primarily a bill for maintenance. The defendant defends on the ground of adultery, alleged to have been committed by his wife, and by cross-petition asks for a divorce. The complainant replies by alleging adultery committed by her husband. It may be remarked, at the outset, that I have never tried a case in which so much moral depravity has been exhibited. The case is the more difficult on that account; the evidence of the principal witnesses being open to so much suspicion.
The parties, who were married on October 4, 1898, appeared to have lived together in Newark harmoniously until about three years ago. Up to that time their income had been small. On his father's death, in 1908, defendant came into possession of an income exceeding $40,000 a year, which he, not knowing what otherwise to do with, began, with his wife, to waste in riotous living. Mrs. Seibert has since then been three times treated for alcoholism.
I regret that the evidence convinces me that Mrs. Seibert committed adultery with John E. Woelfle on the day charged in the cross-petition, viz., March 8, 1910. Woelfle was a saloon keeper and a boon companion of defendant in his debauches. He is shown by the evidence to be a man utterly devoid of moral sense. He was, until July, 1910, when Woelfle and defendant quarreled, a constant visitor at Seibert's house, at Seibert's invitation; after that time he went there clandestinely. He and Mrs. Seibert went out driving together, visited saloons together, and some of the witnesses saw them kissing. On March 7, 1910, Mrs. Seibert ordered from Harth's livery stable a coupe which was driven by a man named Sears. According to this driver, she started from her home shortly after 2 o'clock in the afternoon, took up Woelfle near South Orange avenue, and went, first to Lauchenhauer's saloon, and then to the Old Red Mill. In the evening they ordered Sears to drive to the Continental Hotel in Newark. On their way thither they changed their minds. Mrs. Seibert asked Sears whether he had a room anywhere. He replied that he had, at 246 South Orange avenue. She asked him whether they could go and stay there for the night. He told her they could. On their way they stopped at Haufler's saloon. Sears procured whisky which he took out to the carriage, and they drove to his room on the opposite side of the street. He showed them up and then, at their request, brought, from the same saloon, more whisky and a bottle of ginger ale. They remained in this room during the night. Sears came for them in the morning and took them for breakfast to the Old Homestead Brewery. Such is Sears' story. If true, it proves the charge made in defendant's answer. It is much too strongly corroborated to dismiss it as the perjured evidence of a man bribed to give false testimony. Sears is a witness of some intelligence. He was, at the time of the occurrence narrated, in the regular employ of Harth. He is now a motorman on a trolley in Schenectady. He is corroborated, First, by an entry on Harth's books as follows: "March 7, 1910, Henry F. Seibert—coupé; black mare Harry; Sears 1:15 p. m. to 5 a. m.—$12.50." Second, by Merz, the bartender at Haufler's saloon, who testified to the drinks taken to the carriage and to the whisky afterwards bought by Sears and taken across the street. He did not see the persons in the carriage. Third, by Mrs. Whipperman, the keeper of the lodging house, who testifies to the condition of the room and bed, and to having seen a woman in furs leave the house in the morning. She says that she tried to see Sears afterwards and tell him that he could not have the room any longer but he did not come back. Fourth, by Dolan, who held the horse while Woelfle and Mrs. Seibert got out of the carriage and who recognized her because he had driven for Harth, whose carriages the Seiberts were in the habit of using. Fifth, by Mrs. Schmidt, who, from a saloon across the street kept by her husband, saw a man and a woman come out of the house in the morning. She identified Woelfle as the man but did not know Mrs. Seibert. She says, however, that Sears came over to her husband's saloon and told the men there that he waswaiting for them and that the men were all watching for Mrs. Seibert to come out. Sixth, by Winter, who says that on the only morning Woelfle, whom he knows, was ever in the Old Homestead during the period of his employment, he was accompanied by a lady to whom he served something to eat and drink. He does not identify Mrs. Seibert as the woman, and his evidence, standing by itself, would be of little value.
Mrs. Seibert seeks to meet this body of evidence with an alibi. She and her niece, Mrs. Finn, say that on the afternoon and evening in question they were shopping and attending the theater. They do not remember the play, and, as to the shopping, all that they testify to could as well have happened on any other day. While some weight is to be given to the testimony of Mrs. Finn, who appears to be an intelligent and conscientious witness, I do not think it throws any real doubt over the narration of Sears, fortified as it is by so many independent witnesses, and, I am sorry to say, so probable in itself. The same remark applies to Mrs. Woelfle's testimony. The subsequent conduct of Woelfle and Mrs. Seibert supports the story and proves, as it seems to me, an illicit connection. The cross-petition does not charge adultery committed at the Hotel Rudolph in the following November, but the inference of it is hard to avoid. Woelfle there went under an assumed name, and both he and Mrs. Seibert admit that for two successive nights they occupied the same bedroom; the trained nurse who accompanied her being in the adjoining room. Mrs. Seibert was then in full possession of her senses; she did not, through excessive drinking, become unconscious till a day or two afterwards. One would have supposed that the proper place for the nurse would have been in Mrs. Seibert's room, and that Woelfle, if merely a friend and assistant, would have been in the room occupied by the nurse.
A more difficult problem is presented when we come to deal with the charge against Mr. Seibert. That charge is that on March 17, 1910, and on other days of said month, he committed adultery with one Myrtle Miller at the Hotel Denville, No. 207 West Fortieth street, New York City; and "at other places unknown to complainant and at divers other times subsequently thereto." This charge was an afterthought, not having been made in the original answer to the cross-petition filed on June 29, 1911. The supplemental answer making the charge was not filed until November 22, 1911, the first day of the hearing. The charge that adultery was committed on March 17th is disproved. Indeed, Woelfle, from whom the information upon which it was based must have been derived, does not pretend that it was committed on that day. He vaguely says, in his testimony, that it was committed with a stout woman, whose name he does not know, in the latter part of March, and that it was in April that the adultery was committed with Myrtle Miller. These discrepancies, ordinarily of slight importance, are deserving, in this particular case, of some attention. Proof of the adultery committed in March rests exclusively upon the testimony of Woelfle; proof of that committed in April, upon the evidence of Woelfle and a girl named Margaret Lee.
Woelfle's testimony as to the alleged occurrence in March is that in the latter part of that month he (Seibert) and the chauffeur, a man named Cisco, drove to New York, in Seibert's car, and proceeded to the German Village, a drinking place and resort of prostitutes, but not a bedhouse; that, after getting drinks and selecting three girls, they proceeded to the Hotel Denver (not Denville as charged in the answer) and there obtained rooms which they occupied for about three-quarters of an hour, and then returned to Newark. He cannot identify the girl with whom he says Seibert roomed except by describing her as a stout girl. This is the only evidence of the occurrence. It is given by a man without morals, without character, and entirely unworthy of belief. If the case rested here, there would be no difficulty in dismissing it, denied as it is by Seibert and Cisco, on the ground that judgment of guilt could not be safely rested upon such testimony.
The other occurrence is testified to, not only by Woelfle, but also by Margaret Lee. Woelfle's account is as follows: "About the 10th of April we (Seibert, Cisco, and Woelfle) went over to the German Village, met this Miss Miller (the girl that he says Cisco had had on the previous occasion) and a new girl who was introduced to Cisco. I think," he says, "her name was Alice. I had a girl by the name of Elsie Brown. Mr. Seibert took Miss Miller, the girl that Cisco had the week before, and we all went to the rooms together again. We were there about half an hour, the same as before. * * * I had to register for Mr. Seibert. * * * He says, 'put me down Lowenstein.' * * * I made my name Einstein. I can't recollect what I made for Cisco." He reiterates this account on cross-examination and gives no further particulars.
Margaret Lee's account is as follows: "We met the party in April (about the 10th I should judge) in Delawanna (a village between Nutley and Passaic) at a roadhouse kept by one Foley. * * * We went out for a ride. There was Mr. Cisco, Mr. Seibert, Mr. Woelfle, Mr. Foley, and some other gentleman, and myself. [She had never seen the other gentleman before and did not remember his name.] From Delawanna we went to Boonton. * * * We had a drink. From Boonton we went to some other road-house, I couldn't just tell where it is, called Jack Garrabrandt's. From there we went to Paterson to the French restaurant and had dinner, then back to Delawanna, and fromDelawanna to New York. We arrived at New York between half past nine and ten at night, and went to the German Village. Were there about half an hour or three-quarters of an hour. We went in—our party —we had a few drinks; well I won't say a few, we had two drinks. There was three young girls going out and the gentlemen spoke to them, and the young ladies told them they could not sit down at the table unless they got up and walked to the door with them and came back, which they did, all excepting Mr. Seibert and Mr. Foley and I. We sat there. The young ladies came back. There was some fellow going through selling flowers and Mr. Seibert asked us if we would have some, so we said, 'Yes.' He bought the young ladies violets, and I said I would like to have a bunch of violets, and he wouldn't allow me to take them. He said if they had violets, I should have better, and he bought me a bunch of roses. After that they suggested going to the hotel, so we got up and went out, Mr. Seibert and the girl he was with, Mr. Foley, and I. We went to the hotel together—the Denver on Fortieth street, right off Seventh avenue, I believe it is. We went down there, and we all went in through the hotel into the parlor on the right hand side, going in the door. So we had one drink there, and Mr. Seibert, Mr. Cisco, and Mr. Woelfle, and the other gentleman left Mr. Foley and I sitting in the ladies' room, the ladies' parlor, and we went back to the German Village and had a drink. We had one drink there and came back, and the parties were not downstairs yet, so we sat in the machine and waited * * * about three-quarters of an hour. They came down. I didn't see the girls after that. The gentlemen got in the car and we drove off; drove back to Delawanna."
On cross-examination she says that she had had "perhaps as many as 20 drinks" that day; that she did not remember who, besides herself and Foley, walked from the. German Village to the hotel Denver, thought it was Woelfle (on her direct examination she said Seibert); that she did not see the girls come out of the hotel, and was uncertain whether there were three or four; that on their way home they stopped at a road-house on the boulevard and reached Foley's at Delawanna "around one or half past one o'clock in the morning," where she stayed all night.
The account of the trip, given by Margaret Lee, has at least verisimilitude because of its circumstantiality. It is denied by Seibert and Cisco, but, if believed, Seibert must be held to be guilty. Is this girl, then, a credible witness? There is no presumption of innocence arising from Seibert's manner of life. While he denies that he made the trip in question, he admits that he has "once or twice" visited the German Village. He is a frequenter of saloons and races; has been frequently intoxicated; and has no employment. He is, notwithstanding, not to be adjudged guilty against his own and Cisco's denial, unless the crime be proved by credible witnesses. I was at first inclined to give weight to the account of Margaret Lee, but her story is attended with several peculiarities. In the first place, she was not called until after the complainant's case, on the issue in question, had been put in, and until it must have been seen that it could not prevail on Woelfle's evidence alone. How did she happen to be at Foley's, a roadhouse distant from her residence, on the Sunday in question? And why was she, an entire stranger, invited to go on the ride? This is not explained. Taking Margaret's account of herself, she leads, if not an immoral, at least a questionable, life. She admits that she frequents saloons and has, on three occasions, visited the German Village. In her direct evidence she said she was employed in a silkmill in Paterson, but on cross-examination she testified that she had not been working for two weeks. She does not appear to have any visible means of livelihood outside of her work. The mode in which her attendance was procured is a little suspicious. She says she received a subpœna in an envelope that contained no witness fee; that she came to Newark from Paterson and was met at the street door of the Prudential Building by Woelfle. On her cross-examination she first said that Woelfle was waiting for her, but further on she said he was not. She said that he asked her to come up and testify "about that ride at the time we were out; that they were denying it," and she further said that she had never at any time talked to any one about the occurrence except the woman she boarded with. How her address was discovered does not appear. As the evidence stands, we must infer that it was Woelfle who communicated to counsel the fact that she knew about the matter. But Woelfle does not seem to have given any information about her in connection with this particular occurrence or about the occurrence itself, even at the time when the supplemental answer to the cross-petition was filed, for no mention is therein made of any act of adultery committed on April 10th, although it was later in time and more noteworthy and more likely to be remembered than that actually mentioned in the pleading as occurring on March 17th. It is a singular fact that, although Woelfle must have known from the beginning that Margaret was one of the party and would have strongly corroborated him, he does not mention her name in his evidence when he testifies to the ride of April 10th. They agree upon the day (April 10th, which the almanac shows to be Sunday), but Woelfle, in his evidence, fails to state any one of the circumstances which make the Lee account appear probable. He does not mention the trip to Delawanna, or Margaret's or Foley's name, or the subsequent ride to Paterson, orthe fact that still another man went with them, or what occurred about the flowers; and he was not recalled either to corroborate Margaret on these details or to explain why he himself had so completely forgotten them. Woelfle showed great interest in the result all through the trial, and, naturally, for he was himself a party charged with guilt.
It is moreover proved that on Tuesday, November 21, 1911, while the hearing was progressing, he went to the German Village and told Rose Simpson, one of the girls there, that there was $200 in it for any one who would take Elsie Brown's place; he not finding her there at the time, and she being one of the girls that he had mentioned as going, on April 10, 1910, to the Hotel Denver. The girls addressed declined the offer. These girls gave their testimony on November 29th, eight days after they had been thus approached. On November 19th, Woelfle says he saw Myrtle Miller at the same garden. He does not say that he asked her to come over, and he does not pretend that she refused to do so. The inference is strong that he did not secure her attendance because she would not corroborate him. Now it was after this failure to get either Myrtle Miller or Elsie Brown, or some one who would personate Elsie Brown, that, for the first time in the progress of the cause, Margaret Lee comes upon the scene—a girl of doubtful antecedents, out of employment, and who, because of the somewhat extraordinary circumstances attending the ride, was a prominent and a not to be forgotten figure in it. I confess that it seems to me to be inexplicable that, if she and Foley (now dead) and another unknown man were members of the party, Woelfle should have forgotten to mention it. While it cannot be affirmed that Woelfle's colorless account contradicts Margaret's, no one reading the two would imagine that they referred to the same occurrence.
Dismissing Woelfle as unworthy of belief, there is nothing left but Margaret's narration. She is flatly contradicted by Seibert and by Cisco, the chauffeur. I do not think that her evidence is so convincing and reliable that it should be allowed to prevail against the explicit denials of the parties charged. The verdict must be not proven.
There is another consideration not ordinarily present in cases of this kind—the pecuniary stake involved. Seibert's income exceeds $40,000 a year. If the testimony that Seibert produced had been of a purchasable kind, it would have been as open to suspicion as is that of complainant's, but the difference is marked. Sears' evidence does not stand alone; it is corroborated by such a number of independent witnesses, each testifying to an important detail—just such a detail as would naturally be testified to if the story were true—that it is impossible to resist their cumulative force, and it is made all the more probable by the behavior and admissions of the parties themselves—behavior and admissions that tend strongly to show guilt. The testimony of Margaret Lee stands on a different footing. It is not corroborated even on points on which, in a charge of this sort, corroboration is often, or usually, obtainable. No outsider saw any of the party enter the German Garden or the hotel, or saw them on their trip; the hotel register is not produced; the girl with whom the act is alleged to have been committed is not called, although it does not appear that she. refused to come, and although she was seen by Woelfle shortly before the day on which her associates came to testify to Woelfle's offer.
If bad conduct other than cruelty and infidelity could be set up as a bar, there would be ground for arguing that Seibert should be denied relief; but the law is otherwise.
As to condonation, the evidence falls considerably short of proving that the husband condoned his wife's guilt, after knowledge of the facts. Of connivance, there is no proof whatever. I have not adverted to the alleged visit to the Hotel Bryant, because no reliance is placed upon what Woelfle says about it.