Dennis v. Dennis

• Decision Date: 25 June 1896
• Citation: 36 A. 34,68 Conn. 186
• Parties: DENNIS v. DENNIS.
• Court: Connecticut Supreme Court

36 A. 34

68 Conn. 186

DENNIS

v. DENNIS.

Supreme Court of Errors of Connecticut.

June 25, 1896.

Appeal from superior court, New London county; Prentice, Judge.

Action by Louisa J. Dennis against Elias M. Dennis for divorce. From a judgment for defendant, plaintiff appeals. Affirmed.

The court below made the following finding of facts: "(1) The plaintiff and defendant intermarried February 4, 1890, and have one child, the issue of such marriage, a boy four years of age. (2) The plaintiff and defendant were married at Norwich, and since their marriage have lived in New London. (3) For a period of two years prior to the date of the complaint, the defendant was accustomed to use intoxicating liquors more or less. About once in three weeks he 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. (4) May 18, 1895, the defendant was caught in a compromising situation with a woman unknown. There was no direct evidence offered of any overt act of adultery. The circumstances, however, were such as to justify the inference that the defendant was then guilty of adultery, and I so find. (5) This woman was one employed by the plaintiff's agents to lure the defendant to the commission of adultery, and to the commission of the particular act of adultery above specified, for the purpose of thereby obtaining evidence upon which a divorce could be secured. The circumstances attending the employment and conduct of this woman were the following: (0) In April, 1895, the plaintiff, being desirous of obtaining a divorce from her husband, went to Boston, and there consulted a lawyer, to whom she was recommended by a friend. This lawyer advised her to employ detectives upon her husband for the purpose of obtaining evidence upon which the desired divorce might be secured. She consented, retained him to represent her interests, and left the whole matter, including the procurement of the necessary evidence, in his hands, with full authority to act at his discretion and in such manner as he thought best in the procurement of such evidence, and in the employment and use of detectives therefor as might be necessary. (7) Pursuant to this arrangement and authority, and for the purposes aforesaid, male detectives were employed by said attorney on behalf of the plaintiff. These came to New London from Boston, and for a period of two or three weeks shadowed the defendant. At the end of this time the woman above referred to was in like manner employed to act in concert with the other detectives, and by her wiles to entice the defendant into an act of adultery, or into a compromising situation from which the inference of adultery would be drawn, so arranged that his discovery by her associates might be made. (8) She came to New London, and began to ply her arts upon the defendant. In the course of a week or ten days she succeeded in making an assignation with the defendant at a house in the city for the following evening,—that of May 18, 1895. Her associates having been duly apprised, arrangements were made for the discovery, which was made as planned, by the sudden appearance to the defendant in his compromising position at said assignation of two of the detectives, accompanied by the plaintiff, who had come to the scene for the purpose. (9) No evidence of any other act of adultery on the part of the defendant was offered. (10) The plaintiff did not give to her said attorney, or to any of the detectives employed by him, any distinct 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. (11) I find upon the foregoing facts that the defendant was not, during the two years prior to the date of the complaint, habitually intemperate; and that the act of adultery established by the evidence was one brought about by the connivance and procurement of the plaintiff, acting through her attorneys or agents. By reason of said facts and finding, and in the exercise of the discretion vested in the court in said matter, the plaintiff's complaint was dismissed. (12) Upon the trial the plaintiff claimed that upon the facts the defendant was guilty of habitual intemperance, within the meaning of section 2802 of the General Statutes; and that, the fact of adultery being found, the plaintiff was entitled to a divorce, since the evidence did not establish connivance on the part of the plaintiff within the meaning of the law, and the facts proven were not such as to constitute a bar to her complaint. The plaintiff claimed that although there was collusion between the detectives and the woman, yet as the plaintiff had no knowledge of it she was not affected by it, and not thereby barred from obtaining a divorce."

Donald G. Perkins and William Belcher, for appellant.

Augustus Brandegee and George C. Morgan, for appellee.

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 trior 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 Northwestern Life Ins. Co. v. Muskegon Nat. Bank, 122 U. S. 501-505, 7 Sup. Ct. 1221, 1223, the supreme court of the United States, by Justice Miller, said: "The whole case 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...