Pike v. Pike

• Citation: 136 A. 421
• Parties: PIKE v. PIKE.
• Decision Date: 28 February 1927
• Court: New Jersey Court of Chancery

136 A. 421

PIKE

v. PIKE.

Court of Chancery of New Jersey.

Feb. 28, 1927.

Suit for divorce by Dorothy Palmer Pike against Crozier L. Pike. Petition dismissed, and defendant's counterclaim denied.

Winne & Banta, of Hackensack (Horace F. Banta, of Hackensack, of counsel), for petitioner.

Charles Becker, of Newark, for defendant.

BENTLEY, Vice Chancellor. On petition for divorce, filed by the wife, on the ground of desertion, and a counterclaim charging adultery.

At the time of the final hearing, the petitioner failed to appear, although her counsel was present and took such part as he could in opposition to the counterclaim without the presence and assistance of his client. The defendant moved his counterclaim, and the matter was heard upon that pleading.

The parties were married in December, 1922, when the defendant was 26, and the petitioner was 20. He appears to be a man of education and refinement. Unlike the usual marriages, these parties never took up their residence together, and neither one of them was held out to society as the other's spouse. He continued to reside at the home of his parents in this state, while his wife took up her abode with her mother as a single woman. While living in this state of physical separation, she was discovered by her husband in a room, at night, with a man named Mandell, under circumstances that were ample to convince anybody that she had been guilty of adultery with him. That act was condoned, and her husband afterwards supported her by payments of a weekly stipend until the 2d day of October, 1925, when she unquestionably again committed adultery with a man named Proctor, in her bedroom in a New York hotel, where she was living, to the knowledge of her husband, as an unmarried woman.

This man is not entitled to any relief at the hands of this court, because of his own conduct. It will have been observed that, although he had gone through the marriage ceremony with this woman, he never discharged any of his obligations incident to his status as her husband, except the mere, material, financial means of animal sustenance. Added to that is the further fact that he knew, when he married his wife, that she was a weak vessel and required unusual protection. At the close of his cross-examination, he was engaged in the following conversation:

"Q. How old were you at the time you were married? A. Twenty-six.

"Q. How old was your wife? A. Twenty.

"Q. Was she then engaged in theatrical work? A. She had been on the stage before, and when she wasn't on the stage she was a model.

"Q. Did you know, before your marriage, of any sexual intercourse she had ever had, either with you or any one else? A. Yes.

"Q. If you knew of her weakness, why didn't you do something to protect her from the likelihood of her committing adultery? A. Well, it was rather difficult to do that without living with her, you see.

"Q. Were you willing to risk the destruction of the soul of the woman you married, rather than to face some other consequence? A. (The witness does not answer.)"

The explanation given, either by the defendant or his counsel, to explain the former's failure to make a home for his wife was that he had recently entered upon the export business at the time of his marriage and was still dependent upon his father for his support and perhaps the capital that was required in his vocation. His marriage had been a secret one, and he was apprehensive that, if the fact became known to his parents, he would be cast adrift to fend for himself. A sorrier excuse could hardly be given.

Under the circumstances of this case, a husband is under a peculiar duty to protect his wife against her own weakness. The defendant knew at the time of his marriage that his wife had been unable to resist temptation and had been the victim of seduction. Not only did he fail to give her a home, but he never even gave her his name. He never threw around her the protection that every husband is supposed to give his wife, however moral she may be. He did not give her the comfort of his society, as a man is supposed to do. She was left, under all these circumstances, with abundant opportunity to seek the solace of the companionship of others, and the inevitable came to pass.

In Hedden v. Hedden, 21 N. J. Eq. 61, the husband had seduced his wife before marriage. He then was guilty of highly suspicious conduct pointing to, but not proving, a conspiracy to have another man carnally know his wife. Chancellor Zabriskie did not feel that this crime against him had been proved. He says, at page 74:

"But I do not put the case on the ground that the complainant employed Clark to commit the adultery; the proof, although it may excite suspicion, is not sufficient for that purpose. But it is sufficient to show that he knew of the visits of his wife to this establishment, and of the character and intentions of Clark. If he knew this, his standing by without interfering, and permitting it to go on, is sufficient acquiescence and connivance to deprive him of his right to divorce. It is, in law, consent.

"It is laid down that if a husband sees what a reasonable man could not see without alarm, or if he knows that his wife has been guilty of antenuptial incontinence, or if he has himself seduced her before marriage, whereby he is put upon his guard respecting her weakness, he is called upon to exercise a peculiar vigilance and care over her, and if he sees what a reasonable man could not permit, and makes no effort to avert the danger, he must be supposed to see and mean the result. Bishop on Marr. and Div. sec. 344; Poynton on Marr. and Div. 227-230; Dillon v. Dillon, 3 Curteis, 86; Moorsom v. Moorsom, 3 Hagg. 87."

In the later case of Cane v. Cane, 39 N. J. Eq. 148, Vice Chancellor Van Fleet, in discussing the duty of a husband, under the circumstances of the case at bar, says, at page 158:

"If such a husband sees his wife in danger, if he sees her in a position where she is likely to become subject to the power of the blandishments of a man whose character he knows to be bad and' intentions evil, and he does nothing to warn her, or to. withdraw her from his influence, but allows her to be led on to her ruin and his dishonor, his conduct, in law, amounts to consent, and the statute declares that no divorce for adultery shall be decreed when it appears that the party complaining consented thereto. Chancellor Zabriskie declared in Hedden v. Hedden, 6 C. E. Gr. [21 N. J. Eq.] 61, that if a husband sees what a reasonable man could not see without alarm, or if he knows that his wife has...