Bateman v. Bateman

42 App. D.C. 230 | D.C. | 1914

Mr. Justice Van Orsdel

delivered the opinion of the Court:

It is unnecessary to detail what the detectives testified they saw taking place between defendant and the corespondent during the time he remained with her in the apartment. His mere presence there at the hour of the night, in connection with the general compromising relations of the two, as detailed in the record, would be sufficient. The commission of the act of adultery is so conclusively proved as to admit of no reasonable doubt.

But it is urged by way of defense that, admitting the truth of the charge, plaintiff so connived at the commission of the act as to forbid his right to be heard in a court of equity. Corespondent testified that he met plaintiff before he left the city, and the following conversation occurred: “Mr. Bateman stood there and talked with witness and said, ‘I have not seen you around lately.’ Witness stated ‘I have not been around.’ Mr. Bateman said, ‘what is the matter f Witness stated, ‘I have not been feeling very well,’ or something to that effect. Witness stated that he told Mr. Bateman the circus was going to be in town Monday, and he would like to take the children to the circus if agreeable. Mr. Bateman said that he was going to take them himself, and then mentioned the fact that he expected to go to New York Wednesday or Thursday of the next week. That he expected to get other employment up there that would benefit him more than his place here. Witness congratulated him that he should do so well in business. He said he was scared about Eva since a man had tried to break into Mrs. Bate-man’s apartment. Witness further said that Mr. Bateman said, ‘Suppose you take the children sometime next week ?’ That was the arrangement that I could take the children next week, and he said, ‘You might look around and see that my wife is taken care of properly. She is very much afraid. She wants the doors locked and bolted, she is nervous.’ ” It appears that corespondent had, on occasions before this, taken the children out to walk.

That this conversation occurred is denied by plaintiff, but we do not regard it as important. Conceding its truth, with the additional fact that plaintiff employed an attorney and a detective to investigate and watch the conduct of his wife, and purposely deceived his wife by leading her to believe that he was going to New York, it does not, in law, amount to connivance. The foundation principle underlying connivance, and essential to its establishment here, is that plaintiff must have consented, either expressly or impliedly, to the adultery. It is not necessary that such consent should be known to defendant, but before connivance can be established it must appear from the circumstances of the case that plaintiff was willing that defendant should commit adultery. A wide distinction exists between the desire of the husband that his wife, in whose chastity he has faith, should commit adultery, and his efforts to secure evidence against her if he has reason to believe that she has been guilty of acts of adultery, and will commit the act again if the opportunity is afforded. In the latter case, it is not connivance to deceive his wife as to his whereabouts, or to employ counsel and detectives to assist him in procuring evidence of her infamy.

Neither was plaintiff, when his suspicions were aroused, required to watch his wife constantly and control her actions. “Undoubtedly husband and wife ought mutually to aid each other in doing right, and to guard each other from doing wrong. But the legal duty of the husband to control the conduct of his wife cannot be greater than his legal right; and, by modern law and usage, the right of a husband to control the conduct of his wife has largely, if not wholly, disappeared. A husband cannot imprison his wife in order to protect her against seduction, nor is he compelled always to attend her, or to remain at home with her. A chaste husband ought, if he desires it, to have a wife who will remain chaste when exposed to the temptations which are incident to the ordinary conditions of modern social life; and, if she commits adultery against his wishes, and without liis procurement, he ought to be permitted to obtain evidence of it.” Robbins v. Robbins, 140 Mass. 528, 531, 54 Am. Rep. 488, 5 N. E. 837.

True, plaintiff, as we have suggested, upon well-grounded suspicions, set a trap for defendant.' But he did no affirmative act which induced her to step into it. She was in no way induced by anything plaintiff did to meet the corespondent by appointment on the street, to accompany him to the theater, to admit him to her apartment, and to permit him to remain there until after the midnight hour. Nothing that plaintiff did could have led to anything even reflecting upon the chastity of defendant had she not contributed to produce the compromising situations with the corespondent. It does not appear that the corespondent communicated to defendant tb" alleged conversation with plaintiff. She Cannot, therefore, rely upon that fact as an inducement for admitting him to the apartment. She was free, without the existence of a single circumstance, to conduct herself as a pure woman and a dutiful wife, regardless of what her husband had told the corespondent or the deception practised by plaintiff as to his whereabouts. No opportunity was thrown in her way by the husband. The alleged conversation between plaintiff and the corespondent created no opportunity, had not defendant voluntarily permitted the corespondent to carry out his designs. She created the opportunity. Under circumstances of this sort it is well settled that there is no such connivance as to justify the refusal of a divorce. Wilson v. Wilson, 154 Mass. 194, 12 L.R.A. 524, 26 Am. St. Rep. 237, 28 N. E. 167; Pettee v. Pettee, 77 Hun, 595, 28 N. Y. Supp. 1067.

The decree is reversed, with costs, and the cause is remanded with instructions to grant plaintiff a decree of divorce, with the custody of the minor children, and a judgment against the corespondent for the costs incurred by plaintiff, both in this court and the court below, Reversed and remanded.