
    MICHAEL TORLOTTING, Respondent, v. MINA TORLOTTING, Appellant.
    St. Louis Court of Appeals,
    December 12, 1899.
    1. Divorce: ADULTERY CONNIVED AT: NO DVIORCE: BILL DISMISSED. Respondent hired as a detective, one White, alias Morgan, to furnish him ocular proof of his wife’s infidelity. White planned, an assignation between himself and respondent’s wife, appellant herein, at a certain place and time, and notified respondent that he could in an adjoining room by means of openings in the partition see her commit the act of adultery; he attended, saw and was satisfied; Held, under the circumstances, respondent was consenting to the act of which he complained within the meaning of section 4507, Revised Statutes 1889, and ruled against his having a divorce, reversed the cause, and ordered his bill dismissed.
    ' 2. -; RINDING BY LOWER COURT: NOT CONCLUSIVE. The appellate court will examine the evidence in a divorce suit, for itself and reach its own conclusions, yet when the testimony is oral and conflicting, much deference will be given to the findings of facts by the trial court.
    3. -: CLEAN HANDS: INNOCENT. A party seeking a divorce must, as in a court of equity, come into court with clean hands, he must be both an injured and innocent party.
    4. -: -: --: PRINCIPAL BOUND BY AGENT. White was respondent’s agent, was hired and not restricted as to the means to employ to compass his object, and was expected to furnish the wanted evidence, which circumstance, under the law of agency, places respondent in the unequivocal attitude of conniving at and con. senting to his wife’s adulterous act.
    5. -: -: -: DISCOVERY. The husband may employ agents to watch his wife for the purpose of discovering whether she is guilty or not, as suspected, and he is only required to permit his wife to proceed far enough in the commission of the act to discover to a certainty her lewd disposition.
    Appeal from the St. Louis City Circuit Court. — Hon. Franhlin Ferris, Judge.
    Beveesed {Bill ordered dismissed.)
    
    
      
      Martin & Bass for appellant; II. A. Loevy of counsel for appellant.
    (1) Appellant did not commit adultery. (2) Adultery is a voluntary act of sexual intercourse by a man and a married woman. 1 Am. and Eng. Ency. of Law, 209. If appellant had intercourse with Morgan (which is not admitted), it was while she was under the influence'of drugs, administered by him, and therefore, the act was not voluntary on her part, and she can not be held responsible for what occurred. (3) Respondent connived at and procured the intercourse and paid for it. This defeats the assertion of the act as a ground for divorce. Davis v. Davis, 60 Mo. App. 556; ■ 1 R. S. 1889, sec. 4507; Morrison case, 136 Mass. 310; Pierce case, 3 Pick (Mass.) 299; Hadden case, 21 N. J. Eq. 61; Myers case, 41 Barb. N. T. 114; Gower case, Law Rep., 2 P. & D. 428, 433; Karger case, 19 N. T. Mise. R. 236; Helmes case, 24 lb. 125; Dennis case, 68 Conn. 186; Gipps case, 33 L. J., P. M. & A. cases, 163; Crewe case, 3 Hagg. Eccles. 129; Rogers case, lb. 59, 60; Hoar case, lb. 137. (4) Where the complaining party in a divorce case is shown to have been guilty of such conduct as would entitle the defendant to a divorce, the petition will be dismissed. Morrison case, 62 Mo. App. 301; Nichols case, 30 Mo. 291; Neff case, 20 Mo. App. 191; Hoffman case, 43 Mo. 550. (5) “If it shall appear to the court that the adultery, or other injury or offense complained of, shall have been occasioned by the collusion of the parties * * * on that the complainant was consenting thereto * * * then no divorce shall be granted.” 1 R. S. 1899, p. 1031, see. 4507. Complainant in this case did consent, not passively, ■ but actively, not only consented from the standpoint of mere acquiescence, but actually procured and paid for the commission of the act he complained of. “Eor specific causes of marriage relation may be dissolved, but he or she who is instrumental in producing the cause can never avail himself of it.” (48 Mo. App. 208, 211; 43 Mo. 547, 551; 26 Mo. 545; 28 Mo. 60; 29 Mo. 301.) Davis v. Davis, 60 Mo. App. 556. “One instance of adultery was proved, but there is reason to think the husband was the case of its being committed. It would be a dangerous principle to establish that a husband who has suspicions of the infidelity of his wife shall be allowed to lay a train which may lead her to the commission of adultery in order that he may take advantage of it to obtain a divorce.” Case dismissed. Pierce Oase (Oh. J. Barker), 3 Pick. 299. “I desire to state distinctly and broadly that, in my opinion, if a husband employs a man to.get evidence of adultery upon which to obtain a divorce and that man so employed sets about to procure the defilement of .the wife, and by the intervention of that man the wife is purposely induced to commit adultery, the petitioner has no right to a remedy for such adultery, even if it were proved that he had not given any distinct orders for that purpose.” Gower case, 2 Law Rep. P. & D. 428, 429.
    
      Jesse A. McDonald for respondent.
    (1) “Her story as to believing herself in a real estate office, and that she was drugged, I reject entirely. It does not appear that there was any element of temptation, or seduction, or opportunity for the same on the part of Morgan. I am impressed with the belief, from all the evidence, that defendant was ready and willing when she first met Morgan to respond to a criminal invitation from him * * * The law deals with facts, and the charge of adultery in this case 'must rest upon the act of adultery committed.” The evidence sustains this finding and the appellate court may therefore refuse to interfere.. Brewing Go. v. Brewing Co., 47 Mo. App. 21; Rawlins v. Rawlins, 102 Mo. 567; Nichols v. Nichols, 39 Mo. App. 294; Owens v. Owens, 48 Mo. App. 212. (2) Bespondent did not, as contended by appellant, consent to the adultery proved against her. He, on ample grounds, suspected his wife of infidelity and employed detective White to watch her and let him know if she was doing wrong, which he had a right, under the law, to do. Eiersen v. Eiersen, 52 N. N. Sup. 509; Wilson v. Wilson, 154 Mass. (1891) 194; Welch v. Welch, 50 Mo. App. 398; Bobbins v. Bobbins, 140 Mass. 541; Moorsen v. Moorsen, 3 Hagg., Eccl. Eep. 87; Phillips v. Phillips, 1 Bob. Eccl. Eep. 160; 2 Bishop on Mar. Div. & Sup. [5 Ed.], sec. 9; St. Paul v. St. Paul, L. E. 1 P. and D. 739; Timmings v. Timmings, 3 Hagg. Eccl. Eep. 81. The appellant’s fourth contention for reversal — that respondent is not entitled to a divorce because he was guilty of conduct which would have entitled her to one — was not pleaded, or sustained by the proof, or found as a fact, though all the evidence offered relative thereto was admitted by the trial court. It will be assumed that the court found the fact to the contrary and that proposition may, therefore, be concluded as to this honorable court. Stevenson v. Stevenson, 29 Mo. 95; Miller v. Miller, 14 Mo. App. 428; Owens v. Owens, 48 Mo. App. 212; Nichols v. Nichols, 39 Mo. App. 294. “If the plaintiff consents to, or connives at, or procures the adultery of the defendant, or it is done with his privity, as it is called, then he has no cause of action. The question is, and the question which has been discussed in this case somewhat as a - question of law is, what constitutes consent, connivance or privity ?” It is practically 'conceded in this case, at least it is the contention on the part of the defendant’s witnesses, that the plaintiff suspected the defendant was about to commit an act of adultery with Gulley. Of course, it follows that he could have prevented it. It is claimed by the defendant that because he could have prevented it, or at any rate, as I understand it under the circumstances of the case, that it amounted to consent, connivance, privity or procurement. The court does not so understand the law, and states it differently. In'the language of one of the cases: “There is a manifest distinction between the desire, and intent of a husband that his wife, whom he believes to be chaste, should commit adultery, and his desire and intent to obtain evidence against his wife, whom he already believes to have committed adultery and to persist in her adulterous practice whenever she has an opportunity.” While the contention of the defendant is supported by the case of Karger v.Karger, 19 Mise. Rep. 236, or 24 N. T. Supp. 219, yet we think that such case does not announce a sound rule of law upon this subject, inasmuch as it omits to recognize the distinction which was made by the learned trial court in the charge above quoted which has the support of authority in the court of final resort in this state. Pettee v. Pettee, 28 N. T. Supp. 1067, affirmed without opinion, 148 N. T. 735. In this regard we might prolong the discussion and show that the rule adopted by the court had been uniformly recognized from the decision in Moorsom v. Moorsom, 3 Hagg. Eccl. Rep. 87, down to the present time, both in England and in this country. * * * In St.‘Paul v. St. Paul, L. R., 1 P. and D. 739.
   BLAND, J.

The suit is for divorce and the custody of two minor children. The ground for divorce, alleged in the petition and relied on at the trial, is that on Friday, October 7, 1898, the defendant met a man at a rooming house on Olive street (in the city of St. Louis, Missouri), and committed adultery with him. The answer is a general denial. At the date of the trial the plaintiff, was 58 and the defendant 44 years of age; they had been married for'28 years; had six children, and some grandchildren. A decree of divorce was awarded the plaintiff. Defendant appealed.

The evidence is before us in the form of printed abstracts. The learned circuit judge who tried the cause made the following finding of the facts and statement of the law as applicable to the facts as he found them.

“Speaking of the evidence generally, and considering the, manner, appearance, interest, and sympathies of the witnesses, I think the testimony given on behalf of the plaintiff more reliable in character than that given on behalf of the defendant.

“I find the following facts bearing upon the charge of adultery: Eor some time prior to October, 1898, plaintiff suspected that his wife was unfaithful to her marriage vows. I find that he had ample grounds for such suspicion. Her conduct with reference to going out against his objections, and refusing explanations to him. Her remarks to others about him, and about other men, repeated to him. The fact that she went to the house of the witness, Mrs. Becker, and engaged a room for herself and a male companion (she did not however, return to occupy the room, although a man called at the appointed time), which fact was communicated by Mrs. Becker to plaintiff. These facts, together with all the facts detailed in evidence, would justify plaintiff’s suspicions, if not the actual belief, he entertained that his wife was, in point of fact, unfaithful. The testimony of Mrs. Becker, if true, could point to no other conclusion.

I was impressed with the truthfulness of Mrs. Becker’s' evidence. Her manner was favorable to this impression. Her weak effort to qualify her identification of defendant, when re- • called by defendant for that purpose, strengthened in my mind the force of her original testimony; especially when considered in connection with her cross-examination upon her deposition.

“After acting upon this belief in his wife’s infidelity, plaintiff employed a detective, White, by name, to' watch defendant and to report to plaintiff any facts which he might discover, and particularly to inform plaintiff, in case he should discover that defendant was going to meet a man for sexual intercourse, in order that plaintiff might obtain ocular proof of the fact. I find that in employing this detective, plaintiff’s only purpose was to secure proof of the facts which he believed, or at least strongly suspected to exist. There is no evidence tending to show that plaintiff in any way directed this detective as to how he should proceed.

“On October 8, 1898, at about two p. m., White showed plaintiff a letter or note which reads as follows:

“Dear Mr. Morgan: I can not get out to-night. Tou

try and come to-morrow morning.

Tours truly,

(Signed) Mrs. Torlotting.’

and informed plaintiff that defendant was going to meet this man Morgan that afternoon at 4:30 at his (Morgan’s) room No. 1812 Olive street. At about 4:30 plaintiff, in company with White and plaintiff’s son-in-law, Camp, went to the house, 1812 Olive street; were secreted by White in the room next to Morgan’s, where White left them. Soon after, the defendant, in company with the man Morgan, entered Morgan’s room, remained there for more than an hour, and while there defendant had sexual intercourse with Morgan. The plaintiff, with two other witnesses, had a view of everything that transpired in Morgan’s room, by means of holes through the connecting door, through which they commanded a view of Morgan’s room.

“Morgan and White were one and the same person. Plaintiff did not know this fact until he saw Morgan enter the room with defendant. Then he could see — and did see — that the man in company with his wife was his agent, White. It may be suspected that plaintiff knew of this identity before he went to- the house 1812 Olive street, but there is nothing in evidence from which such a conclusion is a necessary inference, or, to my mind, a natural one. I can not draw such inference from the testimony. Plaintiff denies such knowledge.

“Counsel for defendant attempted, with great skill, to induce plaintiff to admit on cross-examination that he wanted White to catch his wife in the act; but plaintiff put himself on safe ground when he stated that he did not want, but ‘expected’ it. „ Plaintiff here — and I think honestly; he certainly did not know the law — observed the proper distinction between a corrupt motive and the mere desire to obtain proof.

“I further find that this man Morgan introduced himself to the defendant on September 30, 1898. According to her story, she saw him but three times, and then in the presence of- others, before she went to his room on October 7. She wrote him the note above set forth on October 6.

“Her story as to believing herself in a real estate office, and that she was drugged, I reject entirely. It does not appear that there was any element of temptation, or seduction, or opportunity for same on the part of Morgan. I am impressed with the belief, from all the evidence, that defendant was ready and willing when she first met Morgan to respond to a criminal invitation from him.

“Under the foregoing facts, can the husband be held to have consented to the act of which he now complains ?

“If -there were any element of seduction in this case, or if the husband had afforded to this agent any opportunity for seduction; if the parties had been thrown together in social intercourse in such a way as to enable the agent to practice upon the woman any- arts, wiles or temptations; if there were any evidence tending to show that the wife fell because of the act of this agent of the husband, then I should not hesitate to say that the husband should be barred. But where the evidence shows that the wife made an assignation with a man who was a total stranger to her and whom she had not met under any circumstances of intimacy, and where her conduct was and had been of such a character as to induce a -reasonable belief that she was ready and willing, when she first met Morgan, to respond to his invitation, I do not think she should escape the consequences of her crime because her male companion wasthe agent of her husband, even if it should appear that her husband was an eye witness to the act and as such saw that the male companion was his agent. ’ .

“The act of the husband in employing White undoubtedly • contributed directly to the act of adultery of which he now complains. But there was no corrupt motive, and therein lies the distinction.

“The law deals with facts, and the charge of adultery in this case must rest upon the act of adultery committed with her husband’s agent. Tet before this fact can bar the husband, it must appear that the act of adultery resulted from some inducement, persuasion or temptation for which the husband by reason of either direction or permission with corrupt motive is responsible. Under the facts in this case I must hold that the husband did not-consent to the act, and that he is an innocent party. Nor do I think that considerations of pub-' lie policy stand in the way. Rules founded on public policy must be of a general application, hence objections of this character must go to the right of a husband to employ an -agent to watch-his wife and obtain proof, on the grounds that such employment makes it possible for such agents to corrupt innocent wives. It is sufficient answer to this to say that under all the authorities, the law permits such employment. Eui’thermore I can not see why chaste wives require such an appeal to public policy for their protection.”

In divorce proceedings an appellate court will examine the evidence for itself and draw its own conclusions therefrom, not being bound by the finding of facts made by the trial judge. Morris v. Morris, 60 Mo. App. 86; Davis v. Davis, 60 Mo. App. 545; Green v. Green, 22 Mo. App. 494. But where the testimony was oral and is conflicting, o-n account of the superior advantage possessed by the trial judge for weighing the testimony and judging of its credibility, an appellate court will give much deference to his conclusions of fact. Clark v. Clark, 48 Mo. App. 157; Stephenson v. Stephenson, 29 Mo. App. 95; Nichols v. Nichols, 39 Mo. App. 291; Parker v. Roberts, 116 Mo. 657; Cobb v. Say, 106 Mo. 295; McElroy v. Maxwell, 101 Mo. 294. The testimony on the trial of the case in hand was all oral; it was conflicting, and a great deal of it came from witnesses of a shady character, so that correct conclusions of the facts are dependent mainly on the credibility of the witnesses; the trial judge gave the greater credibility to the plaintiff and his witnesses; deferring to his, superior opportunity to correctly weigh the testimony, we are disposed to adopt his conclusions of the facts. The learned circuit judge found as a fact, that the act of respondent in employing White contributed directly to the act of adultery he complained of; but that there was no corrupt motive, and that respondent did not hire White to commit adultery with his wife, or to procure her to commit the offense with any person. The question of law in the case is, may a husband who has good grounds to believe his wife unfaithful, hire a detective to watch her, and may he, when notified by his detective that his wife has made an appointment to meet a man for the purpose of having illicit intercourse with him, go to the appointed place, secret himself, and there witness, without protest or interference, an act of adultery between his wife and his hired agent, without being guilty of such misconduct as to bar his action for divorce, grounded on the act of adultery thus witnessed by him, when he did not know it was his agent who'was with his wife, and did not employ him to commit the act? A party seeking a divorce must, as in a court of equity, come into count with olean hands; he must be both an injured and innocent party. Nagel v. Nagel, 12 Mo. 53; Duncan v. Duncan, Ibid, 157; Morrison v. Morrison, 62 Mo. App. 299; Lawlor v. Lawlor, 76 Mo. App. 637. Section 4507 of the Eevised Statutes 1889, provides: “If it shall appear to the court that the adultery, or other injury or offense complained of, shall have been occasioned by the collusion of the parties, or done with an intention to procure a divorce, or that the complainant was consenting thereto, or that both parties had been guilty of adultery, then no divorce shall be granted.” The adulterous act complained of was not done by the collusion of the parties, nor for the purpose of obtaining a divorce —was it done by the consent of the respondent in the sense the word is used in the statute? Construing the word in connection with other words and phrases used in the same section of the statute, we think it means something more than a mere passive acquiescence in the act; it signifies to connive, to agree to, to be willing that it should be done, in the sense that “Saul was consenting unto his (Stephen’s) death.” (Acts VIII-1). The learned circuit judge found that the respondent in employing White directly contributed to the act of adultery of which he complained, but that his motives were not corrupt. Respondent testified that he was notified when and where the act would be accomplished; that he repaired to the place designated at the hour the crime was to be committed, and saw it done. He testified that when he went there he expected the act would be done. He told his detective Callan that he wanted a divorce, and that he wanted to catch his wife in a compromising position, so that he could get a divorce, and so that she could get none of his property. He told White that he wanted to see the act himself; that he had suspected her virtue since 1890, and that he wanted him to watch-her and expected him to catch her in the act. On her return from No. 1812 Olive street to their home, he stated to his children, in her presence and hearing, “I accomplished what I wanted to, I got her dead to rights. I had to pay damned dear for it, but I succeeded at last.” It was his hired agent who made the appointment with his wife, and who committed the act with her, and the act was committed by him because of his employment by respondent, to earn his fee, and to do what he was hired and “expected” to do; namely, to furnish ocular proof to his principal, (the respondent) that his wife was unfaithful. In the face of all these facts, we must answer the foregoing question in the negative, and hold that the respondent was consenting to the act of which he complains within the meaning of section 4507, supra. But for his employment of White to watch his wife, and to furnish him ocular proof of her infidelity, the act of which respondent complains would not have taken place, and the learned circuit judge was correct in finding as a fact, that respondent directly contributed to the act in employing White to watch his wife. White was the agent of respondent in this matter; he was-hired to furnish the evidence which he did furnish; he was not restricted as to the means he might employ for the purpose; he was not only to watch, but he was “expected” to furnish the wanted evidence. In such circumstances it seems to us that it would be doing violence to reason and the law of agency, to say that the respondent was not consenting to the act, and that he was not guilty of connivance. 2 Bishop on Mar. & Div., sec. 216; Dennis v. Dennis, 68 Conn. 186. We do not wish to be understood as holding that a husband, who reasonably suspects his wife of infidelity, may not himself watch her and employ agents to watch her, for the purpose of discovering whether the suspect is or is not guilty, or that when he suspects his wife is about to commit the act of adultery, he is bound to try to prevent the act; on the -contrao-y in such circumstances we think he may, without being chargeable with connivance, permit his wife to proceed far enough in the commission of the act to discover to a certainty her lewd disposition. As is said in Wilson v. Wilson, 154 Mass. 194: “The law does not compel a husband to remain always bound to a wife whom he suspects, and it allows him, as it does other parties who think they are being wronged, reasonable scope in their efforts to discover whether the suspect is or is not guilty, without themselves being guilty of connivance.” To the same effect are the cases of Rierson v. Rierson, 52 N. Y. Supp. 509 and Krager v. Krager, 24 N. Y. Supp. 219. But if, as in this case, lie so conducts himself as to directly contribute to tbo act of wbicb he complains, he is guilty of connivance.

Por the reasons above stated, the judgment is reversed, with directions to the trial court to dismiss the plaintiff’s bill.

All concur.  