Warn v. Warn

• Decision Date: 20 November 1899
• Citation: 45 A. 916,59 N.J.E. 642
• Parties: WARN v. WARN.
• Court: New Jersey Supreme Court

45 A. 916

59 N.J.E. 642

WARN

v. WARN.

Court of Errors and Appeals of New Jersey.

Nov. 20, 1899.

Appeal from court of chancery.

Action by William E. Warn against Mary C. Warn. From a decree in favor of plaintiff, defendant appeals. Affirmed.

The following is the opinion of the vice chancellor (Reed, V. C.):

"A divorce is claimed by the husband on the ground of adultery of the wife. I am convinced that the defendant was guilty of the adulterous acts charged. Her habits of inebriety destroyed her sense of modesty, and the gratification of her taste for liquor was the bribe by which her virtue was successfully assaulted. The main defense, however, is that her husband failed to surround her with the protection which his knowledge of her habits should have suggested, and, as her adultery seems to have resulted from those habits, that he is not in a position to ask for a divorce. The cases invoked in support of this insistence are Hedden v. Hedden, 21 N. J. Eq. 61, and Cane v. Cane, 39 N. J. Eq. 148. These cases Involve the application of the well-settled doctrine that the husband who connives at his wife's adultery cannot complain of it. But the facts proven in this case do not bring it within the scope of this doctrine. It is undoubtedly true that connivance may consist of a passive assent to the train of circumstances leading to adultery, when the complainant could have prevented the wrong or injury of which he complains. The facts, however, necessary to constitute connivance, must have a direct and necessary tendency to cause adultery to be committed. Stone v. Stone, 1 Rob. Ecc. 99. Corrupt intent is the very essence of connivance. It cannot be inferred from the husband's great inattention to his family. 1 Nels. Div. & Sep. § 481. The gravity of the offense, its infrequency and the general presumption of innocence requires that this defense should be established by direct and conclusive proof. Id. § 499. There is nothing in this case to show that the husband's conduct, whatever it was, was induced by a wish or expectation that his wife should be seduced. There is nothing that he did, or that he failed to do, which could reasonably impute to him a desire or anticipation that his conduct would prompt her to drift into lewdness. Unless this intention can. under the circumstances, be imputed to him, it is irrelevant to consider whether it was his duty to have acted towards her differently than he did. The husband is entitled to a decree for divorce."

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