Morrison v. Morrison
| Decision Date | 16 July 1886 |
| Citation | 8 N.E. 59,142 Mass. 361 |
| Parties | MORRISON v. MORRISON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
H.W. Bragg, for libelee.
S Lincoln and J.R. Smith, for libelant.
The question raised on this case is whether the connivance of the husband at one act of adultery is a bar to a prior act with another particeps criminis. The libelant contends that the adultery of the libelee with Pease having been found, the only things which can bar the libelant are condonation of that adultery, connivance at that adultery, or the commission by the libelant of some offense which is in itself ground for a divorce. Neither condonation of the adultery with Pease, nor connivance at it, are set up in the defense.
The statutes enumerate various causes which will entitle an aggrieved party to an absolute divorce from the bonds of matrimony. Pub.St. c. 146, § 1. It is well settled that a suitor for divorce cannot prevail if open to a valid charge by way of recrimination, of any of the causes of divorce set out in the statute. Cumming v. Cumming, 135 Mass 386. Recrimination as a bar to divorce is not limited to a charge of the same nature as that alleged in the libel. Handy v. Handy, 124 Mass. 394. It is sufficient if the recrimination charges any of the causes for divorce so declared in the statute. The general principle which governs in a case where one party recriminates, is that recrimination must allege a cause which the law declares sufficient for a divorce. Lyster v. Lyster, 111 Mass. 327; Cumming v. Cumming, ubi supra; Clapp v. Clapp, 97 Mass. 531; Hall v. Hall, 4 Allen, 39. Lyster v. Lyster, was a libel for divorce on the ground of desertion. The libelee was justified in leaving the libelant because of his cruel and abusive treatment and gross and confirmed habits of intoxication. The court held that ill treatment and misconduct of the husband of such a degree, or under such circumstances, as do not amount to cruelty for which the wife would be entitled to sue for a divorce, might justify her in leaving his home, and prevent his obtaining a divorce for her desertion, if she did so. His decision is in accordance with the great weight of American authority. It is not a case of recrimination. The libelee justifies her act in leaving her husband by reason of his ill treatment. The general rule, that recrimination must allege a cause which the law declares to be sufficient for a divorce, is not affected by it.
Our divorce statutes make no provision respecting connivance, collusion, condonation, or recrimination, and this court has assumed that the legislature intended to adopt the general principles which had governed the ecclesiastical courts in England in granting divorces from bed and board, so far as these principles are applicable and are found to be reasonable. Robbins v. Robbins, 140 Mass. 528; S.C. 5 N.E. 837. This assumption does not go so far as to embrace the recent statute law of England in relation to divorce.
Under the English divorce act, 20 and 21 Vict. c. 85, a divorce will not be granted if the court find that during the marriage the petitioner has been accessory to or conniving at the adultery, or had condoned the adultery complained of. It has been repeatedly held under this statute that connivance on the part of the husband will in point of law bar him from obtaining relief on account of the adultery which he has allowed to take place. "Volenti non fit injuria" is the principle upon which the rule has been founded. Rogers v. Rogers, 3 Hagg.Ecc. 57; Phillips v. Phillips, 1 Rob.Ecc. 161. Under this principle, it is not always necessary to show active connivance. If it is proved that there has been a long course of criminal conduct on the part of the wife, of which the husband was cognizant, or of which by law and presumption he must be supposed to have been cognizant, he cannot secure relief. Crewe v. Crewe, 3 Hagg.Ecc. 123. The conduct of the husband, after being informed of the adultery of his wife, his refusal to interfere with her, or to institute proceedings against his wife for a divorce, or long delay in so doing, may not in themselves be connivance, but may be evidence of it. A total indifference to such adultery may lead to the inference of original consent. If there was consent, there was no injury, and the husband cannot ask for relief where he has not been injured.
It has also been held that a husband who connives at an act of adultery by his wife cannot complain of any subsequent act whether with the same or another particeps criminis. Gipps v. Gipps, 3 Swab. & T. 116; Stone v. Stone, 3 Notes of Cas. Adm. & Ecc. 282. It has been held that the same principle, above stated, extends to any act of adultery subsequent to the one directly connived at, because the husband, having consented to the fall of his wife from virtue, cannot complain of acts naturally resulting from such fall. It has been doubted whether the general doctrine that connivance at one adultery is a bar to any subsequent adultery, either with the same or another particeps criminis, should govern all cases. The doctrine may be carried too far, and thus deprive a man of all hope, however repentant he may be, and however he may strive to win his wife to repentance. 2 Bish.Marr. & Div. § 44. In Hodges v. Hodges, 3 Hagg.Ecc. 118, it was held that a husband proceeding against his wife for her gross adultery committed after a separation of five years from him, resulting in the birth of children, baptized in his name, was not barred, although before the separation he had...
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