Kohlhoss v. Mobley

Decision Date23 November 1905
Citation62 A. 236,102 Md. 199
PartiesKOHLHOSS v. MOBLEY.
CourtMaryland Court of Appeals

Appeal from Circuit Court, Frederick County; John C. Motter and James B. Henderson, Judges.

Action by Harvey T. Kohlhoss against Walter W. Mobley. From a judgment for defendant, plaintiff appeals. Affirmed.

Argued before McSHERRY, C.J., and BRISCOE, BOYD, PAGE, PEARCE, and SCHMUCKER, JJ.

George A. Pearre and Maurice H. Talbott, for appellant.

Hammond Urner and Edward C. Peter, for appellee.

SCHMUCKER J.

The appellant, Kohlhoss, sued the appellee, Mobley, in the circuit court for Montgomery county for criminal conversation with the former's wife. Mobley pleaded non cul., and after joinder of issue the case was moved on Kohlhoss' affidavit to the circuit court for Frederick county, where it was tried. On the trial of the case the defendant, at the close of the testimony for the plaintiff, offered a prayer asking the court to instruct the jury that there was no legally sufficient evidence from which they could find for the plaintiff, and that therefore their verdict must be for the defendant. The court granted the prayer, and a verdict was rendered for the defendant and a judgment entered thereon from which the plaintiff appealed.

There was evidence on behalf of the plaintiff legally sufficient to support a verdict in his favor, if it had not also appeared in the opinion of the circuit court, from the uncontradicted evidence, that the plaintiff had debarred himself from asserting a right of recovery by his own connivance at the intercourse complained of between his wife and the defendant. The counsel for the appellant did not in the argument controvert the proposition that connivance on the part of a husband, when properly established, bars an action for crim con., as it does a suit for a divorce, but they insisted that connivance is always a question of fact, to be determined exclusively by the jury, and that the court below erred in refusing to permit the jury to pass upon the evidence as to its existence in the present case. The question whether the plaintiff in an action like this connived at the misconduct of his wife is primarily one of fact for the jury. It may even be said that, as the essence of connivance is consent which, like malice or good faith, constitutes an unseen motive of human conduct, it is especially a question for the jury. But the connivance is not proven as an independent fact. It is usually established as a conclusion from a line of conduct pursued by the husband in relation to his wife's intercourse with and relations to the alleged paramour. If, therefore, the conduct of the husband as established by undisputed evidence or admitted in his own testimony is such that a rational mind could draw no other conclusion therefrom than that he had consented actively or passively to the conduct on the part of his wife and the defendant of which he complains, the question would become one of law for the court, which in that event would not only be justified in taking the case from the jury, but it would become its duty to do so.

The authorities are in substantial accord as to the character and degree of connivance requisite to bar an action of crim. con. The conduct of the husband must be such, when subjected to the test of reasonable human transactions, as to show an intention to connive; and here, as elsewhere, the presumption of the law is in favor of honesty and correct ness of purpose, but the husband, like other persons, is chargeable with an intention to produce the necessary and legitimate consequences of his own deliberate action. A passive connivance has been held to be as effectual as an active one to bar the action. Lord Stowell, in Morson v Morson, 3 Hagg. 87, said: "The first general and simple rule is if a man sees what a reasonable man could not see without alarm, if he sees what a reasonable man could not permit, he must be supposed to see and mean the consequences. *** The presumption of the law is against connivance, and, if the facts can be accounted for without supposition of an intention [to connive], the courts will incline to that construction. *** However, though to bar the husband there must be intention on his part, I have no difficulty in saying that mere passive connivance is as much a bar as active conspiracy." In Dennis v. Dennis, 68 Conn. 194 36 A. 36, 34 L.R.A. 449, 57 Am.St.Rep. 95, it is said: "Connivance may be the passive permitting of the adultery or other misconduct, as well as the active procuring of the commission. If the mind consents, there is connivance." Both of the foregoing cases were cited and relied on by us in Barclay v. Barclay, 98 Md. 371, 56 A. 806, where we said: "Connivance is said to be the consent or indifference of the complainant to the misconduct complained of as a cause of divorce. The defense is in the nature of an estoppel, and is generally set up as a defense to adultery only, although the principle may be applicable to other causes for divorce." It has been held that a husband who has not directly or indirectly put opportunities of committing adultery in the way of his wife will not be guilty of connivance for merely allowing her to utilize an opportunity for committing adultery which she has arranged without his knowledge or participation. And he may do this for the purpose of obtaining evidence against her, but he must not make opportunities for her or smooth her path to the adulterous bed. Wilson v. Wilson, 154 Mass. 194, 28 N.E. 167, 12 L.R.A. 524, 26 Am.St.Rep. 237; Morrison v. Morrison, 142 Mass. 361, 8 N.E. 59, 56 Am.Rep. 688; Robbins v. Robbins, 140 Mass. 528, 5 N.E. 837, 54 Am.Rep. 488.

Let us now examine the facts of the present case in the light of the principles which we have stated. The following facts appear from the uncontradicted evidence on behalf of plaintiff contained in the record: In January, 1895, he was married his wife being then about 20 years of age. About 1899, suspecting her of infidelity with a man other than the defendant, he followed her to Washington, and,...

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