Summerbell v. Summerbell

37 N.J. Eq. 603

• Court: Supreme Court of New Jersey
• Decided: November 15, 1883
• Status: Published

Opinion

The opinion of the court was delivered by

Yam* Syckel, J.

The complainant charges in his bill of complaint that the defendant committed adultery with Dr. Helm, of Peru, Indiana, in the year 1877, and also with her brother-in-law, Reed, at Madison, Indiana, and at Peru and Toledo, in the same state, in the year 1877, and he therefore prays a divorce a vinculo. In, support of the charges of adultery the complainant has produced the written confessions of the wife.

The master who advised the decree below concisely states, as follows, the circumstances under which the confession was made, as detailed by the subscribing witness, Miss Caroline Forman :

“The complainant had informed her several days before September XOth; 1878, that he should call on her to witness some papers. On the morning of S -pit mber 10th she went to his house and was met by him in the hall at the foot of the stairs, and informed by him that she was needed as a witness. He then conducted her to his study on the second floor, and the defendant entered the room at about the same time, and saying that she was glad to see her, seated herself at the table and began to write upon the papers called ‘the confession,’ copying from another paper held in her hand, and signing her name to each writing; that the writings were then passed to the witness, who-subjoined with her own hand the attestation clause now appearing upon each, copying said attestation clauses from a form in the handwriting of the complainant, and signed lier name to each as a witness; that the complainant took the writings when thus completed; that the witness was not informed and knew nothing of their contents; that the witness and defendant then went down stairs into the parlor, and after some conversation on indifferent subjects the witness left the, house.”

The attestation clause prepared by the husband is in these words:

“ I have written the within without dictation or control by my husband or any other person, without any promise or threat, and sign in presence of Miss Caroline Forman as witness.”

Six days later the complainant procured thé following paper to be signed by his wife :

“Milford, N. X, Sept. 16th, 1878.

“By this writing I bear witness willingly and without dictatio.n or compulsion, in the hope alone that my husband will pardon my faults, that he has not by act or word condoned any offence committed by me in 1877, nor forgiven it; that the separation is concealed temporarily only to save me from disgrace before the world, at my desire, hoping that my husband will yet find it in his heart to forgive me.

“Alice Summerbell.”

The language of this paper and that in' the attestation clause leave no doubt in my mind that they were drawn by the husband after consultation, with counsel, to be used, as they have been used, as a means of proving the wife’s adultery.

If he had offered his wife as a witness to establish his case, she would have been promptly rejected. It does not appear why her declarations not under oath should be received with more favor, when, out of the presence of the court, the husband procures them for the express purpose of being put in evidence.

A confession procured under such circumstances cannot he regarded as the free and voluntary declaration of the wife, but must be treated as the product of his restraining influence exerted over her feebler will. It was penned by the hand of the-wife, but is none the less the language and voice of the husband.

The attestation clause by which the complainant sought to remove the presumption of constraint which he knew must attach to it, only adds to the suspicion with which it must be received.

The analogies of the law lead us to discredit and discard all testimony which is marked by this infirmity. A confession procured from an accused through inducements held out to him is utterly rejected as evidence. No responsibility attaches for an act done under duress. Even in ■ certain crimes committed by the wife in presence of her husband, the law does not charge her with the guilt of the offence, but imputes her conduct to his coercion.

If these ancient principles of the law are wisely founded, what probative force should be given to the wife’s confession of guilt put forth at a time and place appointed by the husband; before .a witness summoned by him, attested by a clause drawn by his hand, and. written and signed in his presence and under his eye, with the purpose of using it against her?

In my judgment, self-accusation thus procured is unworthy of credit, and- cannot be a safe basis upon which to build up and support a charge of adultery against a wife.

But if this confession is not absolutely discarded there is an absence of such corroboration aliunde as should lead the judicial mind, in a matter of such vital importance to the family relation, to accept it as true.

The first charge in the bill is that the defendant committed adultery with Dr. Helm, at Peru, Indiana, in July, August, September and October, 1877, at the house of her sister.

Since the birth of her child in 1873 she had been affected with inflammation of the heck of the uterus, which had become ■chronic. The doctor says his treatment consisted in applying powerful solutions of iodine and carbolic acid to the inflamed parts, and that a pessary was applied to restore the uterus to its normal position by constant pressure.

That the womb trouble was real and not assumed is evinced by the fact that after the defendant’s return home in June, 1877, the complainant wrote a letter to Dr. Helm, requesting a statement of the line of treatment he proposed to pursue.

Doctor Helm further asserts that sexual intercourse would have been disagreeable to her, and difficult, if not impossible, on his part.

He swears unequivocally that the charge of illicit connection with him is absolutely false, and that he never acted towards her with- the slightest impropriety.

There is no evidence to show that he visited her at unusual hours, or with undue frequency, or that he was at any time alone in the house with her, so that he would have been safe from interruption, or that he ever treated her with familiarity or the least indelicacy He is shown to be. man of high professional standing and irreproachable character in the community where he has an extensive and lucrative practice.

His sworn testimony, unimpeached as it is by a single circumstance of well-grounded suspicion against him, leaves the case without the slightest corroboration so far as adultery is charged with him.

The statement in the confession of the connection with Dr. Helm is thus:

“One time after doctoring, when be said ‘lay still a moment, I won’t burt you or barm you,’ and I protesting and asking bim to go away, I thought he did, but after be bad gone I found be bad done as he wished. I half-way gave up after that several times.”

That Dr. Helm, who then weighed over two hundred and thirty pounds, could have had connection with her without her knowledge until he left her is simply incredible. That he could have desired sexual intercourse with a woman in her condition is equally unworthy of belief.

A man occupying his position in public estimation is not to have his character, won by a life of correct and honorable deportment, blasted by such testimony.

I regard this part of the charge as thoroughly refuted. • Ealse in this respect, the entire confession must fall, for the charge against Reed is emphatically denied by him under oath, and is equally without evidence to support it.

It is strenuously urged on the part of the complainant that the letters of the wife written subsequent to the confession furnish the requisite corroboration.

If these letters admitted the adultery, they would be but the repetition of a confession made under the presumption of coercion, after the wife is removed from the presence of the husband. There would still be an absence of that support to the confession, by facts or circumstances aliunde, essential to the complainant’s case, to justify a decree in his behalf.

But I am unable in all this correspondence to find anything that can with any certainty be construed as an admission of her guilt. In themselves the letters contain no such admission, and if the prior confession is rejected, they give no support to the complainant. It is only by giving effect to the prior confession and reading the letters in connection with it, that an inference unfavorable to the defendant is drawn.

In her after-letters she begs for forgiveness from her husband and shows great anguish of mind, but to account for this it is not necessary to adopt the hypothesis that she had been guilty of adultery.

In a letter written to the complainant April 23d, 1877, by William A. Bell, the defendant’s brother, the latter says :

“ You owe it to yourself as much as to Alice to correct at once and forever the abuses complained of, and as this is entirely within your power, I do not see why you cannot give her assurances that will be satisfactory. A separation would be a calamity and a disgrace to both, and to Carl the misfortune is simply indescribable.”

It is apparent in the case that the wife had charged the husband with neglecting and ill-treating her, and that she had communicated her complaints to her relatives in Indiana. This resulted so seriously that a separation was threatened.

The complainant became so incensed at what he conceived to be undue interference by her relatives, that he attributed to her sister, Mrs. Reed, all his domestic troubles. His jealousy was also aroused by D. T. McNeil, the widower brother-in-law of his wife, and by one T. C. Phillips, who lived in the west. In a letter to his wife dated September 28th, 1878, he charges that McNeil was her lover, that she had received too much attention from him, and that on one occasion in complainant’s presence she had permitted McNeil to put his arm around her and kiss her, and that when he told her of the impropriety of this conduct, she charged him with being over-particular.

The case clearly shows that the wife had complained to the husband of his treatment of her, that he had made a counter ■charge of unwifely conduct against her, that there had been bickerings between them, and that their mutual altercations had led to the apprehension of a separation long before the charge of adultery contained in the bill was thought of.

In a letter written in April, 1878, the complainant speaks of •the weakness of defendant’s mind at that time, a weakness •doubtless incident to the chronic disorder which had so long afflicted her body. In such condition she was easily controlled by his superior will, and he could readily have impressed her with an exaggerated sense of her wrong-doing, and magnified her faults or slight indiscretions in her own eyes. When, therefore, she received the first two letters from him, written after the «confession, in the last days of September, from Kokomo, containing no expressions of affection, and commencing with “ Mrs. Summerbell,” indicating too plainly that her husband had become estranged from her, is it surprising that she, to avert the threatened breach, was quick to acknowledge herself in the wrong and to sue for forgiveness ?

Is it necessary, under such circumstances, to attribute the distress of mind disclosed by the utterances of a feeble woman to consciousness of criminal misconduct? Paroxysms of grief have been exhibited by women for far less cause than that which was present to move her, assuming that her chastity is unimpeached.

In her reply to these letters, written by her from Milford, N. J., October 1st,'1878, she addresses her husband as “Dear Joseph,” and says:

“ Yesterday I received your second letter from K. I got tbe little one on Saturday, and the ‘Mrs. Summerbell' stunned me so, I read it twenty times before I began to see a glimmer of light, and then I thought it is written after another letter, but I did not see through either. Have you decided that you will not see me again or live witb me? Joseph, what has changed you so since you left me? You were so good and kind, you made me love you again so much better than ever, and now you turn my blood with your formality.”

In the same letter she says :

“Joseph, let me see you again. Do not decide yet, please. Joseph, you speak of asking too hard terms, of its appearing selfish, that there will be only, future misery.. Oh, Joseph, that cannot be; I will never complain again or think I have poverty, no matter how many reverses you may have. Try me, try me.”

Thus, after pouring out her heart to her husband, and asking him to forgive her, to what did she refer as the cause of this estrangement, and in what did she promise to amend her conduct?

In nothing save to abstain from future complaints to her family, or to him, of his treatment of her, with the assurance that she would be content with her lot in the sphere in which he had placed her. Is this the language in which a wife sensible of adulterous conduct would have addressed a husband who believed in her guilt ?

Why should she be so greatly stunned by the coldness of a husband, if she thought he believed that she had so repeatedly surrendered her person to the embraces of other men?

How, under such circumstances and with such a conviction, could he, before he left her and after the confession, have been so good and kind, and made her love him again so much better than ever?

If she had been guilty of adultery she must have been sensible that the mere promise of reform in a matter comparatively so trivial as her complaints of him, would have served only to incense him.

There is an extraordinary feature which marks’ this confession of September 10th, that impels me to exact from the husband corroboration for it of a far higher character than that drawn by mere construction from the letters, while they are susceptible of a more charitable interpretation.

The confession commences thus :

“My husband, it is with a heart full of anguish and sorrow and remorse that I write this confession.”

Yet on the morning of September 10th she greeted pleasantly the lady who she knew had come to be a witness to a declaration which would, if published and credited, consign her to infamy. "Without displaying a trace of agitation she penned it down, and signing it handed it to her husband as if it were a mere business paper, and then unconcernedly went down stairs into the parlor with the subscribing witness, conversing upon indifferent topics.

Amazing indifference in a woman not steeped in vice and lost to sense of shame!

That there must have been some understanding between the husband and wife as to the disposition to be made of this paper, and the motives which prompted her to execute it, which has not been revealed to us, their conduct fully persuades me.

The renewal of endearments between them immediately after the confession, as stated so naturally in her letter of October 1st, which I doubt not took place, is inconsistent with his belief in her guilt. That there was an apparent reconciliation is not an unwarrantable inference from the haste with which he procured the non-condonation paper from her before condonation had been suggested by any one.

Again, with the wife’s written confession in his pocket, he never, either in his letters to her or in his subsequent intercourse with her brothers, expressed the slightest indignation for the baseness of Helm and Reed, in betraying the confidence reposed in the one as a physician and in the other as a brother-in-law.

His anger was aroused, and he gives vent to it only against McNeil and Phillips, in his letters of September 28th and 30th, 1878.

In the latter letter he gives expression to the conviction that his wife had improper connection with Phillips, although she denied it, and there is no evidence to support the imputation. Phillips was a paralytic, so far enfeebled by his disease that he died in July, 1878, from the effects of it. The tone of these letters leads to the inference that he distrusted both her charge against Helm and Reed, and her denial as to McNeil and Phillips.

It is quite as difficult to reconcile many circumstances in this case with a belief in the guilt of Helm and Reed, as it is to explain expressions in her letters consistently with her innocence.

To grant the complainant’s prayer as this case stands, the evidence consisting only of unsworn statements of the wife, the truth of which she now stoutly denies, would be to declare that two men of hitherto unblemished repute have been guilty of a criminal act, without a word of testimony under oath to prove the delictum, and without a word or an act on their part that justly gives color to the accusation.

I know of no instance in which a divorce has been granted under such circumstances.

In my opinion, the complainant has failed to present the requisite measure of proof to substantiate the allegations in his bill, and the decree below denying the divorce should be affirmed, with costs.

Since the filing of this bill there has been a change in the law of evidence, which makes the husband and wife competent witnesses in divorce suits. Therefore, under the circumstances of this case, by the unanimous vote of the court, the dismissal of the bill will be without prejudice to the filing of a new bill.

For affirmance—Dixon, Knapp, Parker, Scudder, Yan Syckel, Clement, Green, Paterson—8.

For reversal—Chief Justice, Depue, Magie, Reed, Cole, Kirk, Whitaker—7.