Aitchison v. Aitchison

• Decision Date: 12 October 1896
• Citation: 99 Iowa 93,68 N.W. 573
• Parties: AITCHISON v. AITCHISON.
• Court: Iowa Supreme Court

99 Iowa 93

68 N.W. 573

AITCHISON

v.AITCHISON.

Supreme Court of Iowa.

Oct. 12, 1896.

Appeal from district court, Pottawattamie county; N. W. Macy, Judge.

Action for divorce and for alimony, and the custody of the two minor children of these parties. The causes for divorce alleged are inhuman treatment, such as to endanger the life of the plaintiff, and adultery. Defendant answered, denying both of these charges, and a decree was rendered dismissing the plaintiff's petition, from which decree she appeals. Reversed.Ross & Ross, for appellant.

Sims & Bainbridge, for appellee.

GIVEN, J.

1. These parties--young, intelligent, educated, of good habits, and highly esteemed by their acquaintances--were married on January 30, 1890. Their surroundings gave promise of a happy married life, yet since April 20, 1894, they have lived apart from each other, and the plaintiff is now demanding a divorce upon the grounds already stated. We are not to determine which of these parties is at fault, or most at fault, in bringing about this unfortunate estrangement that has arisen between them. We are to determine from the evidence whether either or both of the causes for divorce alleged are established, and we first consider the charge of adultery.

Plaintiff alleges that on February 4 or 5, 1894, in the city of Marshalltown, Iowa, the defendant did commit adultery with one Miss Howe, and this charge the defendant denies. Adultery is the voluntary sexual intercourse of a married person with one not the husband or wife. 1 Bish. Mar. & Div. 1502. This charge can seldom be proven by other than circumstantial evidence, and evidence thereof is sufficient when the circumstances proven lead naturally and fairly to the conclusion of guilt, and are inconsistent with any rational theory of innocence. Names v. Names, 67 Iowa, 383, 25 N. W. 671. To support this charge it is not necessary to prove the direct fact of adultery, but it may be inferred from the circumstances. The circumstances must be such as would lead the guarded discretion of a just mind to the conclusion of the truth of the facts. “If the adulterous disposition of the parties is once established, the crime may be proven from their afterwards being together under circumstances authorizing such an inference.” Inskeep v. Inskeep, 5 Iowa, 204. There is no direct evidence to sustain this charge. The circumstances from which we are asked to infer guilt are the then existing relations between these parties, the prior relations between the defendant and Miss Howe, their meeting at Marshalltown, and their conduct towards each other while there. The facts touching these matters are substantially as follows:

Differences had arisen between the defendant and his wife long prior to February 4, 1894. They had several times passed weeks together in their own home without speaking to each other. Defendant had made the acquaintance of Miss Howe in Madison, Wis., in 1882, while he was attending college, and they had become engaged to be married. Plaintiff testifies, without contradiction, that at one time her husband told her of this engagement; that Miss Howe had broken the engagement; that he had a serious trouble with his best friend because of the engagement, his friend not thinking Miss Howe worthy of him; and that defendant expressed his satisfaction that the engagement was broken. Prior to February 4, 1894, defendant, then residing at Council Bluffs, Iowa, and Miss Howe, residing at Madison, Wis., arranged by correspondence to meet at Marshalltown on the 4th of February, 1894. On February 3, 1894, defendant left his home, without informing the plaintiff that he was going, but telling the hired woman to inform Mrs. Aitchison that he would be back on Monday. He went directly to Marshalltown, where he stopped at the Pilgrim Hotel, registering his own name, and was assigned to room 58. When he arrived he told the clerk that he expected a lady friend next morning, whom he had not seen for a long time, and that he had a good deal of talking to do, and asked to have a private parlor. He was told that there was no private parlor, but that the lady could be given a room close to his. Defendant said he expected the lady at 7:05 in the morning, and left an order to be called. He was called, and went to the train, met Miss Howe, returned with her to the hotel, and registered her name, “Miss Howe, Madison, Wis.” Miss Howe was assigned to room 60, adjoining that occupied by the defendant, both opening onto the same hall, but without any inside communication. We have none of the letters before us by which this meeting was arranged, but we have the following telegrams dated at Madison, Wis., Feb. 2, 1894, which Miss Howe testifies she sent to defendant: “To Minneapolis to-night. Address E. Thirteenth street. Marshalltown Saturday evening sure. What hotel at Marshalltown? Wire me.” “Plans changed. Marshalltown Sunday morning from Chicago, over C. & N. W. R. R. Wire here. Leave here Saturday p. m.” Plaintiff introduced in evidence a dispatch to defendant at Council Bluffs, dated Clinton, Iowa, February 6, 1894, as follows: “Here safely. Tired out. Served well last night. Fancy past two days. Will write to-day.” Miss Howe admits sending a dispatch from Clinton, but denies that it was in the language quoted. Defendant returned to his home on February 6th, and this telegram from Clinton the plaintiff found upon the floor of their room, where defendant had set his satchel. We are inclined to the belief that the telegram from Clinton was in the language quoted above. On Monday evening, February 5th, the defendant and Miss Howe left the hotel together, he having paid the hotel bill for both. He took a train for the west, and she one for the east, at 11:45 p. m. The rooms occupied by these persons were on the third floor, fronting on rather a dark hall, and without any inside communication. The balcony overlooking the hotel office was on the second floor. The double parlors, separated by folding doors, were also on the second floor. The evidence touching the conduct of defendant and Miss Howe while at the hotel is, in substance, as follows:

Mr. Edwards, clerk of the hotel, testifies as to the arrival, registering, and departure of the defendant and Miss Howe, as already stated. He says: “I saw them quite often on the balcony. Always together when I saw them. I am not up in the halls. I don't know how much they might have been together. Every time I saw them they were together. They came to their meals together; came into the dining room, sat together.” He states that on Monday evening Mr. Bell, of Council Bluffs, registered for lodging; that while sitting in the office they observed the defendant and Miss Howe come onto the balcony; and that Bell informed him that the defendant was a married man. He testifies that Mr. Bell being an architect, and desiring to look through the hotel, which was a new one, he went to show him around: “I went to show him the back parlor, and ran onto these folks sitting on the settee there. I excused myself, but did not light the light. The parlor was a double parlor, with folding doors between.” This witness being asked, “In their conduct towards each other, what did you observe peculiar, if anything?” Answered as follows: “Well, nothing. They were together a good deal. The only thing I noticed that I thought very much out of order was sitting in the back parlor, where there was no light. He asked for a private parlor. I told him we did not have any. They were in the back parlor, and had closed the folding doors.”

Mr. Barnhart, proprietor of the hotel, testifies that there was no watch kept on the third floor; that it was possible for a guest to pass by the hall, from one room to another, without being seen. He says: “About 9 o'clock Sunday morning I was passing along the third-floor hall, and looked into the room 60, occupied by Miss Howe, and I saw Mr. Aitchison sitting in the doorway. I went to the chambermaid on that same floor, and instructed her that if the door of No. 60 was closed, and she had any reason to think that the gentleman was inside, to call the office at once. This chambermaid was Miss Lettie Burris. At about 10 o'clock on Sunday they came down to the public parlor. I saw them frequently during all of Sunday, either in the main parlor or in the gallery. They sat most of the day in the corner of the gallery. I saw them again at night, between 8 and 9 o'clock, in the back parlor. At that time there was a light in the front parlor, and on going back into the back parlor I saw them sitting very close together on a small sofa, and I immediately turned on the electric light in the back parlor, and turned around and walked out. At that time A. G. Edwards was night clerk, and is now in my employ as day clerk. Webb Lively was day porter, but is not now in my employ. Harry Barnhart was day clerk.” Cross-examination: “The conduct of these parties appeared to be that of lovers. They were together all of the time during the day, and acted like two people would who were expecting to be married. They seemed to be fond of each other. When I went into the back parlor he was sitting very close to her, holding one of her hands in his. When I went in the back parlor and saw them sitting on the settee, it wasn't very dark. Light from the main parlor lit up a certain portion of the back parlor, so that any one could be seen readily by going to the door of the back parlor. I did not know they were in there when I went into the back parlor. I went in to examine the lights. They did not seem confused, and not at all embarrassed. There was not a word said. I turned the light on, and went out. The door between the two parlors was open when I went in. I would not have thought of going in there if I hadn't seen the door open, and walked on through. When I saw them sitting there I turned the lights on, because I don't allow any one to sit that way, so as to excite...