Opinion
10-03-1904
TABER v. TABER.
Griggs & Harding, for complainant. Coult, Howell & Ten Eyck, for defendant
Bill for a divorce by Laura Taber against Frank Taber. Decree for complainant.
Griggs & Harding, for complainant. Coult, Howell & Ten Eyck, for defendant
STEVENS, V. C. This is a suit for divorce on the ground of adultery. The parties were married on March 31, 1897, by Rev. Dr. Owens, pastor of the East Side Presbyterian Church of Paterson. They continued to live together until the fall of 1902. After one or two temporary separations of a few weeks duration, during that fall, they finally separated on December 31, 1902. This suit was commenced in June, 1903.
The evidence relied upon to support the complainant's case consists of defendant's admissions, and the alleged presence of gonorrhea and syphilis, symptoms of which are said to have appeared shortly after the act confessed was committed. There is no evidence tending to show guilt outside of these. The defendant says that, while he admitted committing adultery with a prostitute in New York City, he, in fact, did nothing more than accompany her to her room; and he explains the presence of the disease that he admits he had by saying that it was not gonorrhea or syphilis, but a disease whose symptoms resembled gonorrhea and which he had had twice before in his childhood. The defendant's evidence was given with so much apparent sincerity that it necessarily produced a favorable impression. It is perfectly apparent that he was devotedly attached to his wife and child; that he sincerely repented of the wrong done them, by what he himself admits to have been a very disgraceful occurrence; and that he made extraordinary efforts to bring about his wife's return. Whether it would not have been better for the wife to have remained at his home, under the conditions to which they both appear to have assented, I shall not undertake to say. I have merely to decide the legal question.
After a careful consideration of the case, I am forced to the conclusion that the weight of the evidence is that defendant did commit adultery. The defendant owned a farm in the neighborhood of Ridgewood, which he himself cultivated. In the summer he and his wife were accustomed to take boarders. He appears to have become dissatisfied with this mode of life, and in the winter of 1901-1902 procured employment in New York as a salesman. He gave up this employment on March 29 or 30, 1902. The day before he left he says that, being tired, he stoppedat a music hall on Twenty-Third street, New York, and there became engaged in conversation with a young woman who sat next to him and who invited him to accompany her to her room, not far distant. To state the disgusting details is unnecessary. He went to the room with her, and after being there a very short time broke away without having had intercourse. His statement puts him in the attitude of one who, overcome with shame at his situation, had neither the ability nor inclination to indulge his passion. About two weeks after this time appeared a disease whose symptoms, it is admitted, were, in all respects, similar to those of gonorrhea, and he was actually treated by his physician, Dr. Vroom, for gonorrhea. In the following August and September there appeared some of the symptoms of syphilis, and he was actually treated by two physicians, Drs. Doty and Demund, independently, for that malady. Whether he had this latter disease in mild form is left doubtful by the evidence.
Without discussing the evidence at length, I shall briefly state why I think the defendant's account of the matter is improbable. He made a confession of adultery, not only to his wife, but to Rev. Dr. Owens, Mrs. Taber's pastor, who was called into a family consultation on the subject. Dr. Owens says: "I can only say that he admitted that he had been guilty of adultery, and that he had become infected by such conduct, and, consequently, he was under medical treatment." Still more explicit is the defendant's own account of what he told Dr. Owens. He testifies: "I said that I knew I had wronged my wife very dreadfully; that I had done so under great temptation, and was very sorry the moment it was over." The confession was not made without reflection, and in a moment of surprise. Six months had elapsed since the offense, and his malady, known to his wife as early as April, had become the subject of anxious consideration by her family. It was made at a time when the defendant was doing everything in his power to regain his wife, who had then left him, and was under a pressing necessity of telling the simple truth, if that which he now states were the truth. The occurrence as he now relates it was less disgraceful than that which he confessed to. If true as related, he would have stood forth as one who had been tempted and who had at the last moment resisted temptation and overcome it. Men under the stress of an impending calamity not infrequently seek to avert it by falsehood. It is, however, difficult to imagine that any man, in his senses, would resort to a falsehood which would involve him in misfortune, rather than tell the truth which would, at least, tend to free him from it, and which would, in any event, give him a legal right to the society of his wife and child.
There is another circumstance which must be adverted to. His confession was coupled with the mention of a friend of his by the name of Scott. This is his wife's version of the conversation on that point: "I said, 'Tell me truly, were you anywhere with your brother Ed. Taber?' He said 'No.' I said, 'Were you anywhere with Raymond Scott.' He didn't say anything. He merely burst out crying, and then said, 'I have been untrue to you.'" The defendant's version of this conversation is: "Then she tried to lay the blame for my going wrong on two other parties. I told her it was not the case in one instance, and in the other I didn't give any answer at all." The wife testifies that on March 29th Scott met him in the city. After most of the evidence had been put in, I stated that it would be proper to call Scott, and an adjournment was had which afforded an ample opportunity either to produce him or take his testimony on commission. No satisfactory explanation of why he was not examined has been given. The defendant does not say in his testimony that Scott accompanied him to the music hall, nor, on the other hand, can I find that he says, in so many words, that he went alone. In addition to the evidence of confessions is the presence of venereal disease. The defendant denies having had it. His suggestion now is that what he had was simple urethritis—the same disease that he had when a boy. It is a very singular coincidence that this disease should have broken out two weeks after the visit to the music hall. It is rather remarkable, too, that not only three of the doctors whom he consulted should have treated him for either gonorrhea or for syphilis, but that the defendant himself should have thought or feared, as he evidently did think or fear, that the disease was of a venereal character.
The defendant's counsel, in his argument, chiefly relied upon condonation. The pertinent facts are these: The presence of the disease gave rise to suspicion as early as April or May. He denied improper relations with any one. In June, the disease continuing, and the complainant becoming more uneasy, she left his room. At the end of August he made the confession. His wife did not leave his house until the end of September. She remained away until October 11th. On that day, at a family meeting, Rev. Dr. Owens having been called in consultation, she decided to return, but only on condition. The condition was, in the words of Dr. Owens, that he would not ask that his wife should come back and be a wife to him, but simply that she would remain in the house. She left him again, about October 20th, on a visit to her sister in Paterson. On November 12th, the defendant's sister was to be married at Patchogue, Long Island, where his mother lived. The complainant consented to go to the wedding, and it was arranged between them that they should spend the winter athis mother's house at Patchogue, but still on the above-mentioned condition. At the last moment, however, Mrs. Taber refused to go there, because, as she says, he had, the day before, insisted that she should share his room; that she was doing him a great injustice in thinking that he then had any disease. She remained in Paterson until December 3d. During the interval between the wedding on November 12th and December 3d the defendant gave up farming and hired a flat in Brooklyn, where, his wife refusing to return to him, he began to keep house with his mother. During that interval two important letters were written, one by defendant to complainant, suggesting that he might, because of the separation, commit suicide, and the other by defendant's brother Edward, a New York attorney, to Irving Dey, a brother of complainant, threatening that, if complainant did not return, a disclosure of certain disgraceful conduct on the part of complainant's father might be made. The complainant says that she was so far operated on by these two letters and by her destitute condition that she resolved to return. Defendant says that she gave as her reason for returning that he had sent her, with an imploring letter, the child's winter coat. On her way to his Brooklyn residence she stopped at the home of defendant's brother-in-law, Dr. Northrop, a practicing physician. Dr. Northrop says, and in this all parties agree, that she expressly stipulated for two conditions. One was that if he ever had anything to do with any other women she would leave him, and the other was that they should sleep in different rooms. She remained at her husband's flat from December 3d to December 31st, and then left him. Her reason was, as she says, that he kept asking her to resume marital relations, and that her situation became unendurable.
Do these facts show condonation? In Bernstein v. Bernstein, Pro. Div. (1893) 302, it is said: "Condonation is a conclusion of fact, not of law, * * * and means the complete forgiveness and blotting out of the conjugal offense, followed by cohabitation." In an earlier case (Dance v. Dance, 1 Hagg. Ec. 794) Lord Stowell had used language very pertinent to the ease in hand. "The parties had separate beds. * * * They never, as far as appears, bedded together afterwards, and therefore what has been said of condonation is quite of the question. There must be something of a matrimonial intercourse presumed in order to found it it does not rest merely on the wife's not withdrawing herself. But the court does not hold condonation so strictly against the wife from whom it looks for a long-suffering and patience, not to be expected nor tolerated in the husband." In Goeger v. Goeger, 59 N. J. Eq. 15, 45 Atl. 349, V. C. Emery used the following language: "Forgiveness of the offense, whether it be evidenced by words or acts, is not necessarily legal condonation, which requires the forgiveness to be followed in fact by a reconciliation, in which the wife is reinstated to such conjugal cohabitation or connubial intercourse as may be adapted to the circumstances of the parties." It has been often held that remaining in the same house after knowledge of the offense does not constitute condonation. Westmeath v. Westmeath, 2 Hagg. Ec. Supp. 1, 118; Jacobs v. Tobelman, 38 La. Ann. 842; Harnett v. Harnett, 59 Iowa, 401, 13 N. W. 408.
These expositions of the meaning of condonation show clearly that it is something more than forgiveness, in the sense of ceasing to harbor resentment. It is not only a blotting out of the offense from the mind and heart of the person forgiving, but a restoration of the offender to his former position. If the wife says: "I will cease to entertain feelings of resentment against you for the wrong you have done me. I will go back and be your housekeeper, but I will not maintain wifely relations with you"—it is manifest that the condonation is not complete. Great stress was laid by counsel upon a letter written by the complainant to Charles Taber on the day she finally left her husband's home. She says: "Every one supposed that wifely relations were not to be thought of, at least for the present;" and further on: "If your brother had acted like a man about things, instead of making such numerous propositions or any proposition at all, for the present at least, yes at all—for I was the one propositions should have come from—it would have changed things." This letter, fairly interpreted, seems to me to militate against counsel's position. It shows very plainly, first, that there were to have been no wifely relations for the present; and, secondly, and this is the important point, that the complainant had reserved to herself, and to herself alone, the decision whether there should be any in the future. It is this explicit reservation on her part which precludes the idea of condonation. It might perhaps be open to argument whether it must be shown that there has been an actual resumption of sexual intercourse; whether the condonation might not be complete where, the parties being apart, there was forgiveness coupled with an agreement to live together again and to resume sexual intercourse when, for example, the family physician should pronounce all danger of infection over, and where the parties actually came together again in pursuance of such an agreement. No such question is to be dealt with here, and I express no opinion about it. There was no agreement for the resumption of intercourse, present or future. On the contrary, the agreement was that there should be no "wifely relations, at least for the present," and that whether there would be in the future would rest entirely with the wife.
I think the decree must be in favor of complainant.