Fonger v. Fonger

⁶¹¹ Offutt, J., delivered the opinion of the Court. This is a proceeding instituted by the appellant, Edward R. F'onger, against his wife, Evelyn E. F'onger, the appellee, in the Circuit Court Ro. 2 of Baltimore City, to procure a decree divorcing him a vinculo matrimonii from the defendant on the ground of adultery. The appellee denied the alleged adultery and alleged that her husband had conspired to place her in “embarrassing or incriminating circumstances.” The case was tried upon those issues, and at the conclusion of the trial the court dismissed appellant’s bill. This appeal from that decree presents two questions, both of fact, one, whether the evidence proved the wife's guilt; second, if it did, whether the husband connived at the offense.

A very careful examination of the record leaves no reasonable alternative but that of an affirmative finding on both issues. The specific acts charged by the appellant occurred on the 22nd and 26th days of Rovember, 1929, in the Hotel Abbey in Baltimore. The circumstances upon which the appellee relied in support of her charge of connivance are inseparably connected with those incidents, and the evidence relating to both questions is so interwoven that its application will be clearer if they are considered together. Without setting it out in detail, it is sufficient to- say that the evidence establishes these facts: The parties were married in Michigan in 1917, and lived for a time at Sparta and later at Grand Rapids, where Fonger was employed by a company engaged in the manufacture and sale of furniture.

Two children were born of the marriage, of whom one, a boy, was nine years old when the suit was filed, and the other, a girl, was six years old at that time. The parties, except for a period during which the appellant was absent during the World War, lived together in Michigan until 1927, when the appellant came to- Baltimore to superintend the Baltimore branch of the fur7 niture company by which he was employed, leaving his wife and children on a farm near Grand Rap-ids, Mich. From that time he has seen his- wife at rare intervals, for compa ⁶¹² ratively short periods, and apparently never when he could avoid it. The infidelities of which he complained are said to have occurred at the Hotel Abbey in Baltimore on the 22nd and 26th days of November, 1927, and, while the evidence as to them is clear and convincing; and requires little comment, to make manifest the appellant’s connection with them involves a more extended consideration of the record.

Prior to Fonger’s removal to Baltimore in 1927, he and his wife appear to- have lived together simply, peacefully, and, as far as the record discloses, happily. They were plain people, and their interests appear to have been confined to the little farm on which they lived and to Fonger’s work. When F'onger came to Baltimore in 1927, the current of their lives was abruptly diverted into new channels. Mrs. Fonger remained on the farm, where for a time she did much of the manual labor, fed some twenty-five pigs, milked the cows, helped to harvest the crops, and did whatever else was needed to- carry it on.

With his removal to- Baltimore, Fonger’s material fortunes had brightened. He was receiving what was to persons in their station a large income, living, free from family cares, easily and comfortably in hotels and apartments, and had learned to- pursue pleasure, even to the extent of dissipation, with some zest. Indeed so far did he progress that he was asked to leave a respectable boarding house because his parties were so boisterous and doubtful that they offended his fellow lodgers. His relations with other women became friendly, easy, and genial, and he came to regard not only with complacence- but admiration such modem improvements in manners and morals as smoking and the consumption of “gin mixed with orange juice” by the women who moved through his new life.

Taken altogether, he found life in Baltimore pleasanter than on the dreary Michigan farm with the wife of his youth, whose work as a household and farm drudge had left her little of the grace and the charm which he saw in the women with whom he associated in his new and delightful surroundings. And one of the consequences of his changed environment was that he ⁶¹³ came to compare his wife unfavorably with these acquaintances, and such affection as he had for her was replaced by distaste and finally by positive dislike. The difference in their lives was of course apparent to her, for from time to time, with little encouragement from him, she visited him and attempted to share his improved fortunes Her visits were never invited, usually unexpected, rarely welcome, and, when she finally came to stay in November, 1927, he was not only aghast, hut enraged. She did not fit into the life he was leading; he did not want her; he constantly manifested his disliko for her; and his obvious and unconcealed wish was to be rid of her.

He spoke in his testimony of having doubted her chastity, but, except for certain wholly inadmissible hearsay testimony of suspicions quality, there was not the slightest evidence to justify the doubt. Shortly after Fonger came to Baltimore in July, 1927, his wife drove to that city with an uncle, who was driving across the continent from his home in the West, and stayed at Idlehigh with her husband about three weeks. Except that he gave her the impression that he was ashamed of her because she did not smoke, Fonger’s treatment of her on the occasion of that visit appears to have been kind, and, when she left to return to Michigan, they were on friendly terms. In the autumn of 1927 her health became impaired, she says, as a result of her work on the farm, and in December of that year she returned with their children to Baltimore, and stayed with hex husband in an apartment until February 15th, 1928.

On that visit he neglected her, did not think she should have come, gave her the impression he was ashamed of her, and said she was nothing but a farmer, unsophisticated, did not smoke, urged her to go West for her health, and on February 15th of that year she again left Baltimore. In the following May, to recuperate her health, she went with her children to visit relatives in the far West, and returned from that visit in July, 1928. Although during her absence she expressed in letters her desire to return, her husband assured her that he did not need her and urged her to stay, and, although she had wired him to meet her or ⁶¹⁴ write her, when she did return to her home he neither met her nor wrote her, but did send an unsigned telegram accompanying a money order, in which he said: “Please find enclosed $50.” Three days after her arrival he telegraphed her that he would be home the following week, but, to quote the witness, “he kept putting her off,” until she wrote that she was either “coming to Baltimore or going back out West,” and then he came home, and that appears to have been his only visit to his wife and family. Throughout that visit, the appellee testified, he was cold, overbearing, seemed to be ashamed of her, “suspicious and nasty minded,” went through her trunks, and at times hardly spoke to her.

She was anxious about her future, and demanded that he tell her whether she and her children were to come to Baltimore, and finally he told her that he would return on the 10th of September and take her and the children to Baltimore. He did not return in September, nor did he return at all, but in the latter part of that month she drove to Baltimore with her nephew and a party of friends, and called on him at the factory. He was shocked and surprised to see her, but, when he was told her nephew and his friends were looking for a place to stay, he took them to a small ill-kept hotel, but did not offer to take his wife to his apartments. The next day they secured better accommodations, and his wife called at the factory for him and took him to see the rooms.

While he was there she locked him in the room which she had rented for him, and told him “he had to stay with” her “that night and talk things over.” On that occasion she testified she said to him “ ‘that he had to stay with me for the looks of things, anyhow, he would have to stay with me whether he liked it or not until he gave me a definite answer why he did not want to stay with me, because it was driving me crazy and I was so embarrassed and I told him, I will give you anything in the world you want; I don’t care what you want, name it, and if I can make you happy, I will do it; but, for heaven’s sake, don’t make me ashamed in front of my friends that I have made you a regular God to.’ I said, ‘You don’t know how they talk to me.’ So I tried everything under the ⁶¹⁵ sun that night, I cried and I scolded and I got mad, and then I got glad. I done everything trying to strike the mood that I could reach him through, some chord in him I could reach for. He sat there with his arms folded like that (indicating), and said, ‘Rave on.’ ” She further testified: “I told him the only thing—I had learned to entertain company. When I met his friends, as he called them, he always made me feel inferior to his friends, and my aunt and uncle took me to their home and showed me how to entertain people, as he called it, in his class, and showed me how to entertain people in his class being a farm girl, and I wanted to get in a nice home and show him my stuff.” After that he told her to “go home and get the furniture out of storage, and get the children,” and they would get an apartment.

She returned home, but Fonger in his first letter to her appears to have revoked his promise, and as a result of her disappointment she was in a highly nervous condition, and consulted Dr. D. A. Dickson, of Grand Rapids, Mich., for advice and treatment. As a result of his examination, Dr. Dickson wrote Fonger: “Just a line to let you know of the nervous condition of Mrs. Fonger. “During the past ten days I have seen her twice and find her on the verge of a nervous breakdown. “Physically, she is above the average, but her nervous and mental condition is not up to the normal. “All I can find out from her regarding the cause of this condition is her being alone and away from you. “It may be necessary that she have some institutional care, so I thought I had better let you know of her condition before the crisis comes.” Fonger paid no attention to the letter, and finally Dr. Dickson told Mrs. Fonger that he was going to Fonger’s employer and complain that Fonger would not give his wife the care that her condition required and that he would not answer letters. That frightened her, for she feared Fonger would lose his position, and she at once came to Baltimore to see and warn him. His attitude towards her was such that ⁶¹⁶ when she arrived she felt that he would not willingly see her, and she telephoned him that his sister wished to see him at the depot.

He came at once in response to that message, but, when he arrived and saw his wife, to quote from her testimony: “I could not go on and explain the furious attitude that he had. He simply was boiling all over, he could have killed me, and he just called me down there to a finish in front of everybody in the depot. He did not care who saw him and asked me why I came down, why I did not tell him, and I said, ‘I came down because you did not answer my letter and Dr. Dickson is going to expose you to the company and I came down to see you about Bernard’s condition.’ * * * He kept me in the depot about a half hour and he said I had to go back by the next train. ‘You cannot stay here in Baltimore.’ I said, ‘I am going to stay all right; I have to stay a little while because I am too sick to go back.’ He said, ‘Well, you are going back.’ ‘Well,’ I said, “I am not going back until this is settled.’ So then he seen I was not going back on the next train and he took me down in the car some-wheres and parked the ear.” The result of the interview was that Fonger took rooms at the Carolina Hotel, after declining to take his wife to his own apartments. In taking the rooms he refused to register as her husband until the proprietor told him that he could not have a room unless he did.

Such was FongeFs state of mind, and such his attitude towards his wife when she came to Baltimore in Rovember, 1929, to live with him. At that time he was boarding at the home of Mrs. Roseberry, where he had been since June, 1928. Mrs. Roseberry had a son, Robert, then about forty-five years old, who was a salesman, and a daughter, Mrs. Laura Hut-chins, neither of whom resided in their mother’s home, although the son lived next door and took his meals there. He was on friendly terms with the members of the Roseberry household, and, to use his own expression, lived there as if he “was one of the family.” Shortly before his wife came to live with them, he had been warned by her physician that she was on the verge of a nervous breakdown; she had been ill on the trip to Baltimore, and he was aware that ⁶¹⁷ her mental condition was fast growing worse.

Notwithstanding that, from the time of her arrival in Baltimore in November, 1929, until November 22nd, 1929, when she was found in a hotel with Eoseberry, he treated her with a shrewdly calculated cruelty obviously designed to aggravate her mental distress. When she complained, he said, “Why don’t you die if you are sick?” or “Why don’t you die and have it over with?” On one occasion she showed him their marriage license, which had on it the motto “whom God had joined together let no man put asunder,” and told him that it had “been very precious to us,” and showed him her wedding ring and asked him if it had not been a “very beautiful symbol.” He replied, “No, just a piece of cheap gold.” And when she asked “Is that all it means to you ?” he answered, “Put that d-thing away, I never want to see it again.” Except for Eonger, there was no one in Baltimore to whom she could turn for comfort or companionship, and, when in her condition her isolation in the apartment Eonger had procured became unbearable, she asked him to let her go with him on one of his trips to Philadelphia. When he refused, she begged him not to leave her “in these awful rooms alone, I can’t stand it,” and finally when she was frightened and feared that, if left alone, she would take her life and said to him that, if she were left alone, she would “probably jump in the bay or some place,” he shook hands and said, “Well, do a good job of it, old kid.” It is apparent from the record that long before Fonger’s visit to Grand Eapids in August, 1929, he had tired of his wife, and on that trip he not only insulted her by his neglect and conduct, but ransacked her trunk in search of something of an incriminating character. Finding nothing, when she came to Baltimore to stay in November, 1929, he resumed his search for such evidence under circumstances which he felt would better insure success.

Before she came, Mrs. Eonger had heard her husband’s name connected with that of Mrs. Hutchins, Mrs. Eoseberry’s daughter, and, while there is nothing in the record which in any way reflects upon the character of that daughter, Mrs. ⁶¹⁸ Fonger was anxious to see her and ask her about the rumor. Although she had been warned by Fonger to keep away from the Eoseberry home, she finally saw Mrs. Hutchins, but did not see Mrs. Eoseberry, but, on the following day, Hovember 21st, she was called over the telephone by Mrs. Eoseberry, who invited her to meet her that evening and dine with her. Mrs. Eoseberry was an elderly woman, employed at times as a nurse, whose time, it may be assumed, was fully occupied with her duties as a nurse and boarding house keeper. Her acquaintance with Mrs. Fonger was slight and casual, and arose from her having been called in to care for the Fonger children during Mrs. FongeEs visit to Baltimore in December, 1927.

Without attributing to her any conscious intent to deceive, if is fairly obvious that, except for subsequent events, there was no apparent reason why Mrs. Eoseberry should have invited Mrs. Fonger to dine with her at all, or why in any event she should have invited her to dine anywhere but at her own home. Mrs. Fonger accepted the engagement, but, when she arrived at the appointed place, instead of Mrs. Eoseberry, she found her son, Eobert, who explained to her that his mother was unable to keep her engagement, but he invited her. (Mrs. Fonger) to dine with him. Before accepting, she called her husband over the telephone, and was told that he would be at work until 10.30 o’clock.

She then accepted Eoseberry’s invitation, went to dinner, and afterwards to a theatre with him, and then she returned to her apartment. On the same evening Fonger instructed one of his employees, one Louis Bode, to keep' a watch on his wife’s movements on the following day. She had then been living with him in Baltimore since November the first, but until that evening he had taken no' steps to hare her movements watched, and, unless' he knew of it in advance from Bose-berry, he could not have known that she was to dine with Eoseberry, for Mrs. Fonger’s engagement was with -Mrs. Eoseberry, and she herself did not know that Eoseberry