Opinion
06-08-1897
TODD v. TODD.
John L. Semple, for petitioner. Henry I. Budd, Jr., for defendant.
Suit by Charles A. Todd against Minnie Marie Todd for divorce. Dismissed.
John L. Semple, for petitioner.
Henry I. Budd, Jr., for defendant.
GREY, V. C. (orally). I will dispose of this case now. The situation proven is this: The complainant in the case was engaged as a boat captain, and his business required his frequent absence. The defendant is a woman of about 30 years of age. Taking all the proofs together, and notwithstanding her denial, she has, in my opinion, been shown to have been guilty of adultery according to the charge alleged in the bill. This condition of adulterous conduct on the part of the wife (the defendant) was brought to the knowledge of the complainant by the narrative of various persons, not with the detail which has been presently on this bearing proven, but with sufficient accuracy and credibility of statement to lead the complainant to believe it to be true. Whether the statements which were made to him were full and final exhibitions of fact is of comparatively little importance if the condition of fact existed, and the statements, whether they were slight or in full detail, were sufficient to make him believe that that condition existed. He did believe that condition existed, because, immediately that he found it out, the first thing that occurred to him, or the first thing as to which he took any action, was that he should recover from his wife the building association stock which represented the accumulation of moneys sent by him to her, and standing in her name. He went to see his wife, and without saying anything to her as to the information he had received that she had been unfaithful to him, he obtained her to make over to him, or to his control, by writings which he procured her to execute, these shares of the building association stock. After that had been done, he made known to her the facts which had come to his knowledge of her adulterous conduct. It is perfectly plain to me that he had at this time all of the knowledge which put upon him full responsibility for his subsequent acts in relation to his wife which the law places upon a man who knows that his wife is guilty of adultery; that is, he had received such evidence of his wife's sin that he had believed it to be true, and he had predicated his own actions on that belief, and that is as far as any man gets if he has the visible evidence of his own eyes. All that he could do to show he believed it was to accept it as true, and predicate his action upon it. So we come to the consideration of the additional element in the case with this precedent question settled. The wife (I will not discuss the details of it, because I am satisfied of the proof) has been shown to have been guilty of adultery, and enough information has been brought to the husband to satisfy him of the existence of that fact, and for him to act upon it. The law undoubtedly is that the party setting up condonation of an offense of this character must, asserting the affirmative of an issue, establish it by carrying the burden of the proof. But that burden may be aided in the first place by the presumption to which the facts proven may give rise, and it may be shifted by the character of the proofs which are submitted. It does not necessarily always remain on one side. The circumstances surrounding the acts of condonation were these: The wife was absent from her own house at the time when the husband charged her with adultery. On the very night that he charged this upon her he occupied the same house with her, the same room with her, and slept in the same bed with her. Neither reason nor explanation is given for this act of the husband. This man was evidently not one of those persons who would be filled with horror at the information suddenly brought to him that his wife had been unfaithful to him, because, when he met her, the first thing he thought of was, not his wife's breach of her marriage vow, but the consequent loss to him if she should insist upon her legal right to maintain the ownership of the building association stock. So the subsequent relations of these parties are not to be judged from the standpoint of a husband filled with horror by such a wife's wickedness. It must be put upon an entirely different plane. A manly character would in all probability never have been found in the same house with the woman who had committed such an offense, save to denounce her; but this man was able to occupy not only the same house, but the same room and the same bed, with his unfaithful wife. Irrespective of the obligation upon the party defendant assertingcondonation to carry the burden of proof, the complainant husband himself has, under his own oath, admitted the fact that on this very occasion when he made known to his wife his knowledge and belief in her faithlessness, he occupied not only the same house and the same room, but slept in the same bed. He adds the additional fact that he did not take off his clothes, and he denies that at these times he had any sexual intercourse with her. She testifies he had, and, while I place very little reliance upon her credibility when she denies what I regard as proven to be true,— the fact of the adultery,— yet even a person who has committed perjury may tell the truth. It is not necessarily a lie because she narrates it, and the truth of her story must be ascertained by estimating its probability when all the surrounding circumstances are considered. If a man— a stranger— and a woman had occupied the same room and the same bed for a whole night, would any court accept his statement that he did not take off his clothes as a refutation of the natural inference which would be drawn that the transactions between those people were such as would justify a belief in a connubial, or at least a copulative, relation? But when this husband got into bed with that wife he got into bed with a woman whose person he had enjoyed. He felt entirely free to make any approaches to her that he might like, and obviously he was not repelled by the knowledge of her wrongdoing, else he would not have been there at all; so that he must be presumed to be a person who came to that degree of intimate relation with that woman on that occasion, not deterred by his knowledge of her previous unfaithfulness, else it is impossible to believe that he would have been in such a place with her. When it is admitted by him that he did take such a place of intimate relationship, and occupy during the whole night the same room and the same bed with his wife, the inference naturally to be drawn attends upon the proof, and the court would consider this as sufficient proof of sexual connection until some satisfactory explanation is given. But this is not all. He admits that he occupied the same bed for one night, but, he says, with his clothes on; but immediately afterwards, with all the knowledge that he had of the unfaithfulness of his wife, he admits that he occupied for several nights the same room. She says that on two of those occasions they had sexual connection. He denies that fact, but admits that he occupied the same room, and declares that he slept on the floor, and that he did not on those occasions sleep in the same bed. There is no explanation given why he should have occupied the same room night after night with this woman of whose misconduct he had such knowledge. No statement is made which repels the inference that this intimate association was a willing renewal of their connubial relations, with knowledge by the husband of the wife's wrongdoing. There is no statement or pretense of any compulsion operating upon the husband to induce this conduct. Here is a man who is in the habit of caring for himself, of bunking in his boat, sleeping wherever he might happen to be, as is the custom of those engaged in the dredging and steamboat business. He was not a strange countryman who slept in his own house every night, and did not know where else in the city, except at his brother's, with his disgraced wife (where the latter cohabitation took place), he could find harbor. This is the case of a man who could readily find harbor for himself elsewhere, for a steamboat captain, thrown on his wits, could readily have found a resting place anywhere, had he cared to do so. If the recreant wife pursued him, that only called his attention to the more needed caution in the conduct of his relations to her; but, notwithstanding that fact, not only on the first night, when he reproached her with her misconduct, and slept in her bed, but afterwards, for several nights, of his free choice, he continued to sleep in this woman's room. While it cannot be said that the wife*s testimony alone has carried the burden of the proof, it can be said that the admitted circumstances of this husband's relations with this woman, after he had undoubted knowledge of her offense, are such that the court, in accepting their truth as stated by the complainant, is compelled to the belief that sexual intercourse did take place between the parties notwithstanding his denials of that fact. I do not see how I can avoid that inference. Besides the inherent incredibility of the complainant's story of his conduct while spending these nights with his wife, his manner and appearance while on the witness stand led me to hesitate to accept his statements as to his continence on the occasions referred to. The words that he used descriptive of his conduct did not accord with the impressions made by his personality. While there has been proof of the act of adultery, there has also been proof, in my opinion, that after the knowledge of the fact of adultery the husband has so acted towards the wife that a condonation has been established. I will therefore make an order that the bill be dismissed, with costs.