Dennis v. Dennis , 68 Conn. 186 ( 1896 )

Andrews, C. J.

Habitual intemperance as a cause for which a divorce might be granted, was first named in this State by a statute enacted in 1843, where it was coupled with intolerable cruelty. Precisely what constitutes habitual intemperance within the meaning of that statute, it is not easy to define. It may however be safely assumed that the purpose of the Act was not primarily to promote temperance or to reform the offender, but to preserve the peace, comfort, safety, happiness and prosperity, of the non-offending party, and of the family of which they are together the members and parents. In a note upon this statute left by the late Chief Justice Church, he said: “The habitual use of intoxicating liquor, though producing excitement, will not justify a divorce. The habit must be so gross as to produce suffering or want in the family to a degree which cannot be reasonably borne.” We are not aware that any court in this State has attempted to define these words. The expression is one of those terms which, like the expression “ intolerable cruelty,” often arise in the law and which cannot well be defined in advance. They must be applied by the trier to cases as they arise, by inclusion or exclusion, and the existence of the condition in question decided as a matter of fact. The language of the statutes in other States, by which the use of spirituous liquors is made a cause for divorce, is so divergent as to afford but little aid in the construction of our own. In California it has been held that a fixed habit of drinking to excess, to such a degree as to disqualify a person from attending to his business during the principal portion of the time usually devoted to business, is such “ habitual intemperance ” as is made a ground of divorce. Mahone v. Mahone, 19 Cal. 626. “ Habitual intemperance” is a condition; and when any person gets into that condition he is said to be “ habitually intemperate.” These latter words are frequently used in policies of insurance, and in various cases arising on such policies these words have been the subject of judicial discussion. In the case of the N. W. Life Ins. Co. v. Muskegon Bank, 122 U. S. 501-505, the Supreme Court of the United States, by Justice Miller, said : “ The whole ease turned, so far as the jury was concerned, upon the true definition of the words ‘habitually intemperate.’ ... We do not know of any established legal definition of those words. As they relate to the customs and habits of men generally in regard to the use of intoxicating drinks, and as the observation and experience of one man on that subject is as good as another of equal-capacity and opportunities, their true meaning and signification would seem to be a question addressed rather to the jury than to the court. While there may be on the one hand such a clear case of intemperate habits as to justify the court in saying that such and such facts constitute a condition of habitual intemperance, or on the other hand such an entire absence of any proof, beyond an occasional indulgence - in the use of ardent spirits, as to warrant the opposite conclusion, yet the main field of inquiry, and the determination of the question within it, must be submitted to the jury, and the question on this submission must be decided by them.” The case of Insurance Co. v. Foley, 105 U. S. 350, was on a policy of this kind. The court below had instructed the jury that if the habits of the insured “ in the usual, ordinary, and every-day routine of his life were temperate,” he was not intemperate within the meaning of the policy, although he had “had an attack of delirium tremens resulting from an exceptional indulgence; ” and this instruction was sustained.

■ The finding in this case shows that the defendant “ about once in three weeks became intoxicated, during the evening,. to such an extent that the next morning he did not go as usual to his work at the store where he was employed as a clerk,” and had continued to do so for a period of two years. While this condition of the defendant very likely caused annoyance and vexation to the plaintiff, and possibly grief and humiliation, it does not appear to have occasioned any loss.of position to the defendant or any trouble between him and his employer, nor does it appear to have been so gross or so long. continued as to have produced want or suffering in the family. We fail to see in .this case that the Superior Court ■ committed any error in law in this respect.

The trial court held. that the act of adultery proved was one brought about by the connivance and procurement of the plaintiff, acting through her attorneys or agents. The appellant strenuously insists that this finding is not supported by the evidence. Connivance is the corrupt consenting of a married party to that conduct of the other of which after-wards complaint is made. It bars the right of divorce because no injury is received; for what a person has consented to, he cannot set up as an injury. Connivance is a thing of the intent resting in the mind. It is the consenting. But the connivance may be the passive permitting of the adultery or other misconduct, as well as the active procuring of its commission. If the mind consents, that is connivance. Ross v. Ross, L. R. 1 P. & D. 734; Pierce v. Pierce, 3 Pick. 299.

The connivance of the plaintiff is established as a fact upon evidence, to the admission of which no objection was made, and we suppose this to be a conclusion which this court cannot revise. The argument of the appellant is founded on that part of the finding which says that “ the plaintiff did not give to her said attorney, or to any of the detectives employed by him, any direct or specific authority or direction, as distinguished from the general authority hereinbefore set out, to employ said woman for the purposes for which she was employed, or to employ any woman for such purpose, and the plaintiff had no actual personal knowledge that the woman found with her husband was one employed by her agents in the manner, in which or for the purposes for which she was employed.” The argument is that this finding is inconsistent with the conclusion to which the court came, because it shows, as she claims, that her mind never consented to the adultery of her husband. This argument cannot be maintained in view of the other facts of the case. Connivanee can usually be proven only by proving facts from which, with their circumstances, it may be inferred. From the finding before us it appears that the plaintiff had suspected her husband of infidelity, although she did not suspect any particular woman. She was desirous of obtaining a divorce. She consulted an attorney in Boston who advised her to employ detectives to watch her husband. She authorized that attorney to employ such detectives for that purpose as he saw fit, to procure such evidence as in his judgment was necessary, giving him full authority in the premises. Detectives were employed by him and sent from Boston to New London. Among other things done by this attorney and the detectives he hired, a lewd woman was employed to lure the defendant by her wiles into an act of adultery, or into a compromising situation from which the inference of adultery would be drawn, so arranged that his discovery would be made. This lewd woman came to New London, commenced her practices on the defendant, succeeded in attracting his attention and in drawing him into the precise sort of an act for which she was employed. During the progress of her efforts the plaintiff was informed by the detectives that her husband had been seen with a woman at night in the streets of the city, and on the night arranged for the discovery she went with the detectives to the room where the defendant and the lewd woman were together. There was sufficient to justify the Superior Court in finding that the plaintiff must have known that the movements of this lewd woman were in some way governed by the detectives who she knew had been employed by her attorney, and who gave her the information which they did by which she was enabled to confront her husband while in that woman’s company. Soon thereafter the plaintiff caused her petition for a divorce to be brought, praying for a divorce based on the act she had so discovered. Her conduct then and ever since might well be deemed to cast a reflex light on her knowledge of the purposes for which the detectives were employed, and her consent to the artifices which they practiced. These are the facts and circumstances from which the trial court held that the plaintiff was barred of all right to have a divorce for the acts of adultery she had proved. In the light of the authorities we have cited we think the decisión of the court'on this part of the case should not be disturbed. Morrison v. Morrison, 136 Mass. 310; Myers v. Myers, 41 Barb. 114; Hedden v. Hedden, 21 N. J. Eq. 61; Austin v. Austin, 10 Conn., 221; Cairns v. Cairns, 109 Mass. 408; Masten v. Masten, 15 N. H. 159; Gower v. Gower, L. R. 2 P. & D. 428. In this last ease it was held that “if a person employed by a husband to watch his wife for the purpose of obtaining evidence of her adultery, brings about an act of adultery, the husband cannot obtain a decree of dissolution (of the marriage) on the ground of such adultery, although he may not have directed or authorized his agent to bring it about.” The petitioner admitted that he had employed one Williams to watch the respondent and to obtain evidence of her adultery, but denied that he had ever instigated Williams to induce her to commit adultery, or sanctioned his taking any steps with that view. The evidence showed that the act of adultery on which the petitioner relied, had been brought about by the contrivance of Williams. In deciding the case The Judge Ordinary said: “ I think it quite possible that he (the petitioner) did not tell Williams to do what Williams appears to have done; but at the same time, he never warned him not to do what a man of his class and character would be likely to do. The very first thing which would occur to such a man, if evidence were not forthcoming, would be to make an occasion which should furnish that evidence. In that point of view the petitioner is responsible for the act of his agent. But I decide the case on the broader ground that the petitioner cannot obtain the benefit of redress in this court for an act of adultery brought about by his own agent.” Other cases supporting the same doctrine are Williamson v. Williamson, L. R. 7 P. & D. 76; Hawkins v. Hawkins, L. R. 10 id. 177; Heyes v. Heyes, L. R. 13 id. 11.

The State makes itself a party to all marriages, in that it requires the marriage contract to be entered into before officers designated by itself, and with certain formalities which it has prescribed. The State does this not alone that children may be born and properly reared, but that the parties to the marriage may themselves be the better citizens; it being in accordance with the experience of all mankind that human beings are happier and are better citizens and better disposed towards the State, when married and surrounded by the ties of a family and with children, than when they remain unmarried. The State desires good citizens. It regulates divorce procedure in its own interest. A divorce cannot be had except in that court which the State authorizes, and for those causes only, and with those formalities, which it has by statute prescribed. As the State favors marriages for the reasons stated, so the State does not favor divorces; and only permits a divorce to be granted when those conditions are found to exist, in respect to one or the other of the married parties, which seem to the legislature to make it probable that the interests of society will be better served and that parties will be happier, and so the better citizens, separate, than if compelled to remain together. The State allows divorces, not as a punishment to the offending party nor as a favor to the innocent party, but because the State believes its own prosperity will thereby be promoted. /Seeley's Appeal, 56 Conn. 202, 206.

The forms of the law of divorce should never be allowed to minister to the caprices of fickle-minded persons, or to the revenges of the disappointed or vindictive; and least of all to the passions of the incontinent. Nor under any circumstances should they be used in fraud of the statute allowing divorces, nor of the court. To the end that any and all attempts to use the forms of the law of divorce for any of the purposes indicated, shall be discovered and defeated, all courts possessing divorce jurisdiction are vested with a discretion. A wise discretion should always be exercised in administering the law of divorce, lest its spirit be disobeyed by a too narrow adherence to its letter. “ Courts are the mere instruments of the law, and can will nothing. When they are said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and, when that is discovered, it is the duty of the court to follow it. Judicial power is never exercised for the purpose of giving effect to the will of the judge; always for the purpose of giving effect to the will of the legislature ; or, in other words, to the will of the law.” Ch. J. Marshall in Osborn v. U. S. Bank, 9 Wheaton, 738, 866.

There is no error.

In this opinion the other judges concurred.