German v. German

Adkins, J., delivered the opinion of the court. The parties to this suit were married in April, 1912. Beginning with their bridal trip and extending, through six years down to the time of their separation in July, 1918, their quarrels were of frequent occurrence, mostly about matters of small importance and due to temperamental defects of both, to financial troubles requiring frequent moves, and to innumerable little things, which in themselves were of small importance. ⁴²⁵ The final break up came as tbe result of a breakfast table quarrel about what appears from the record to have been a trivial matter, ending in the use of language by the husband which the wife regarded as an insult, and in the throwing by her of a cup of coffee in his face. As the coffee was not hot, no physical harm was done but it seems to have been the last straw.

Ido then and there announced “I am going to leave you now, I am never coming' back again, the worm am turned.” This was in July, 1918. He left her, never returned and never invited her to return to him; although there were subsequent interviews between them. He testified at the trial below that he meant the words above quoted when they were uttered, and “I mean them now,” and that he did not intend to invite her to return. The bill for divorce a mensa was filed by appellant August 8th, 1919, on the ground of abandonment and desertion.

The defendant, on August 27th, 1919, answered denying the allegations of the bill. On September 5th the court passed an order for the payment of $20 per week as alimony pendente lite. A few days after the passing of this order, detectives were employed by the defendant,' and on October 1st, 1919, a cross-bill was filed charging that the appellant “on divers flays and times since the said marriage, to wit, on the seventeenth day of September, in the year 1919, and on the twenty-second day of September, in-the year 1919, and at various other times has committed the crime of adultery with one E. Turner Duvall, and with divers other men whose names are to your orator unknown”; and praying for a divorce a vinculo. On February 3rd, 1920, the answer to the cross.-bill was filed denying the charge of adultery.

Over three hundred pages of testimony were taken on the original bill, the greater part of which is unimportant, and nearly two hundred and fifty pages under the cross-bill. Before taking up for consideration the testimony taken under the cross-bill, it may be well to say that we agree with ⁴²⁶ the conclusión of the trial judge that there was not such provocation as to justify the appellee in abandoning his wife; and that unless the. charge of adultery has been proven against hex’, she is entitled to a decree in her favor under the original bill. And at the threshhold of the investigation of the facts sought to be proved by appellee, it should be said that nothing appears in the reeoi’d tending to prove the charge of adultery except in connection with the alleged occurrences on the steamer “Florida” on the nights of September 11th, 17th and 21st. As so much depends upon a careful weighing of all the evidence in cases of this character; the testimony in regard to these occurrences will be set out quite fully.

The important witnesses in this connection are the two detectives, Mrs. German, DUvall, and Mx*s. German’s niece, Elizabeth Whitehurst. The testimony of John T. Lyons, the manager of the detective agency, and of Frank O'. Singer, as to statements alleged to have been made by Duvall, and the testimony of Mts.

Addie Young as to certain alleged statements by appellant will also be inferred to. Frederick -Schilling testified that on September 11th, 1919,. Mrs. German was in pui’sei’’s office, about 6 o’clock, went to No. 97 about. 7.30; stayed there until 8, when pui’ser entei’ed and remained about 15 minutes; then they both came out and went down stairs into the dining room; stayed there till 9.25 or 9.30; then both went upstairs and both went into the room and the purser stayed there 15 or 20- minutes. He then went to the purser's office.

After that the engineer1 made several short visits to the room. Then about 12.15 the purser entei’ed the room again. Witness in the meantime had not seen Mrs. German come out of stateroom. Witness remained outside until 3 or 3.30 in the morning and did not see him any more.

Witness then retired. Witness was sitting on the main floor of the boat, and could observe the room plainly and could see the doorway, and could see the people walk in and out. At about- 6.45 on the morning of ⁴²⁷ the 12th. saw purser in his office. He proceeded to room 97, rapped on the door, held about 5 minutes conversation, did not enter, and returned to his office.

Saw Mrs. German and the purser leave the boat in a taxi cab, about 9 o’clock; there were three people in the taxi; witness followed them in a taxi, but in the traffic in Granby street they got away. Next saw Mrs. Gorman and the purser at 10 o’clock at the corner of Granby and Main Streets when they got oh of a ear together; they went into a shoe shining place, and visited five or six stores, one was a confectionery store, and another place they got ice cream or something. They proceeded around town until four or five o’clock in the afternoon, when the purser put Mrs. German on a car at the comer of Main and Granby Streets and left her. On the 17th Mrs. German came back to Baltimore on the Florida.

Mr. Wallace, another investigator from Smith, West & Lyons, was on board with Schilling. Mrs. German arrived on the boat at 5.30. She occupied Room 97. She went from there, to thei dining room with the purser and purser went in No. 97 at 11.35.

Mrs. German was in the room. Wallace and Schilling; watched until 4 or 4.15 when purser came out and went to his office. He had been in No. 97 continuously. Did not see Mrs. German come out.

Schilling and Wallace went to Norfolk again on September 20th, saw Mrs. German and Duvall (the purser) at Ocean View on the 21st. They came there together; they proceeded to rear of the bath houses, and sat down on the lawn; sat on the grass for about 1% hours and then went to the ear line and went to town. Next saw Mrs. German on the night of the 21st on the pier and on the Florida. A little, girl was with her.

They had rooms 95 and 97. The porter opened up both rooms. Both of them went in No. 97. Later on the child went in No. 95.

Mrs. German retired around 9 or 10 o’clock. “She went into No. 97 and the child, I think, went into No. 95, I think.” The purser “went in there around twelve, twelve fifteen to twelve twenty.” He came out “about ⁴²⁸ four o’clock in the morning, something between four and four thirty.” About 6.30, before the boat landed, the purser went to No. 97 and rapped at the door again. The lights went on in No. 97 at aboqt 4 o’clock. Before that they were out. Witness could see the light through a sort of grating above the door.

While Mrs. German was in the purser’s office several other people were there coming and going. The door was open. Robert W. Wallace testified that he was an investigator for 'Smith, West & Lyons; went to Norfolk September 14th; saw Mrs. German come on the Florida on September 17th; Mr. Rigney, the assistant purser, met her as she came up the gang-plank; she went on board and went to room 97; saw Mrs. German sitting in the purser’s office early in the evening for about an hour. Mr. Duvall, Mr. Rigney and several other men were there at the time.

Around 8 o’clock she went to room 97; and in about 15 minutes Mr. Duvall went up and rapped on the door; then Mrs..- German and Duvall went to the dining room; they were there about an hour or an hour and a quarter. It was around 9.30 when they came out; Mrs. G. went to room 97, where Duvall left her at the door and went to his office. He remained in his office till about 11.30 when he came out and locked the door; then he went to room 97 (about 11.35) which he opened with a key and went in; had not seen Mrs. German after she entered her room after she came from the dining room; Duvall left No. 97 about 4.20’ — next saw her with Duvall at Obean View on September 21st; witness and Schilling saw Mrs. German and Duvall coming towards the bath house at about 11:45 A. M., they did not go bathing; they sat on the lawn in front of the hotel; a little after 2 o’clock they took a car to go to Norfolk; at about 5.55 or 6 o’clock Mrs. German and a little girl boarded the boat; a porter opened rooms 97 and 9-5; the little girl is in court and says she is her niece. They Went on the upper deck until the boat left Old Point Comfort.

Then they went to Room 97, came out in a few minutes and ⁴²⁹ went to Mr. Duvall’a office; later on they all went to the dining room. They came out of the dining room about half-past nine; after they came out of the dining room, Mrs. German and the niece went to the upper deck; they remained there about twenty or thirty minutes. Mr. Duvall went from the dining room to his office. Mrs. German and the little girl went to stateroom 97; witness and Schilling then took up their watch on the doorway of room 97, Schilling going to one end of the boat and witness to the other. “At 12.55 A. M. on the morning of the 22nd, Mr. Duvall was observed to go into room 97; he came out of there about 4.12 on the morning of the 22nd, went down a flight of steps and went towards the stern of the boat.

The lights burned in No. 97” for about ten minutes after Duval entered. Then for about ten minutes before he came out at 4.12 the lights burned again. They burned a little while after he came out, about ten minutes. The lights were put out at 4.20 that morning.” Witness could tell whether or not the lights were burning in the staterooms from the grating over the doorway.

It appears that the witness, Wallace-, wrote out the reports of -Schilling’s alleged observations on the 11th and 12th and of what they both claim to have seen o-n the later dates and had them typewritten. On September 24th, 1919, Duvall was summoned to the office of Lyons and the reports of the “investigators'” were read to him and Lyons remarked that it looked as if he (Lyons) had him (Duvall) in a pretty bad fix. Lyons asked him if he was willing for Mr. Frank O. 'Singer (the- employer of Mr. German) to be called to the room, to which. Duvall assented.

Singer repeated substantially the remark of Lyons about Duvall having gotten into a pretty bad mess, and, according to Singer’s testimony, he- advised Duvall to see the counsel of Mr. & Mrs. German and try to have the divorce suit compromised to avoid publicity. Duvall testifies that Singer asked him if he knew he had made himself liable to twenty years in the Atlanta penitentiary, which, ⁴³⁰ however, Singer denies. Lyons does not positively deny that such a suggestion was made by Singer, but says he does not recall it. Duvall says he signed the two papers with the understanding there was nothing in them of an incriminating nature, and that in reply to' a question from Mr. Lee (before he signed the paper) he told him most emphatically he had no improper relations with Mrs. German.

This is not denied by Mr. Lee. At any rate, Duvall was persuaded to sign two of the three reports, those of the 11th and 21st of September, and was induced to go- to see Mrs. German on his next tripi to Norfolk, where she then was, and to try to get,her to come to Baltimore to confer in regard to a compromise. This she refused to do, saying she would come to Baltimore and fight this thing out, that she was not going to let anyone call her a bad woman. Duvall testified that the report as to the alleged occurrences of Sept. 17th was not shown or read fi> him at any time,, and that the statements made by the witnesses Schilling and Wallace asi to his being in Room 97 of the Florida on that night were absolutely false.

These reports, though offered in evidence by the defendant, do not appear in the record. It does not appear, however, that there was any substantial difference between the statements contained therein and the testimony of Schilling and Wallace, except in the report of the 17th there is nothing said about Duvall having unlocked the door with a key when he entered No. 97 at 11.35 that night. On the witness stand Duvall swears that he was in such a state of mind when the reports of the 11th and 21st were read to him, and he was told what a bad fix he was in, that he was willing to do anything to save his wife and Mrs. German from a scandal, and as most of the statements made in these two reports seemed to be true he signed them without reading them carefully; that he did not notice on the report of the 11th the length of time it was stated he rer mained in the room. It is clear from the record he was ⁴³¹ made to realize that appearances at least were against him, and was persuaded that by signing the reports of the detective® and inducing Mra.

German to compromisei her1 suit for divorce he would prevent a scandal. Mr. Singer admits that his interest in the matter was to bring about a compromise for his friend and employe, the appellee. The explanation given by both Duvall and Mrs. German of the visit of Duvall to her room the night of the 11th is as follows: At about 12 o’clock she was taken very sick and rang the bell in her room and the porter answered. She asked for some paragoric. “He went down stairs and had not been gone long when some one knocked at the door.

I asked who it was, and he asked: ‘Is there anything wrong, Helen ? Are you very sick? T said ‘yes,’ and I opened the door. There were two men lying apparently asleep on the floor, and he had to step, across one of them to get. to the door.

I poured the paragoric out into a glass, that I had in my room, and he stood there a few minute® at the door and we talked. I fixed the medicine and took it. I was dressed perfectly presentable to see a gentleman at my door. The door was open all the time; it was never closed.” It all could not have been more than twenty minutes at the very outside.

He look the bottle of medicine with him when he went away. Both of them swear positively as to the length of time Duvall was at or just inside the door. (Duvall says it could not have exceeded thirty minutes), and that the door was open all the time. Duvall said the two men asleep in front of the door were soldiers or sailors.

It is to be noted that Schilling, the only “investigator” on the boat that night, did not say when testifying in chief that the door was ever closed and that he is not put on the stand to rebut the testimony of Mr. Duvall and Mrs. German on this point. Mrs. Addie Young, a witness for Mr. German, testifies Mrs. German ate canned salmon at her house for supper at or about that time; that witness was made sick by it, and ⁴³² that Mrs. German had told her she was sick that night on the boat.” Mrs. German and Duvall positively deny that Duvall was in her room at all on the night of the 17th. It is worthy of notice that Schilling says nothing in his testimony about Duvall entering with a key; and from the statement in appellant’s brief, not controverted by counsel for appellee, no such allegation appears in the original report made out by Wallace. His testimony on that point, therefore, seems to be an afterthought.

Mrs. German and her niece Elizabeth Whitehurst and Duvall testify as to Duvall’s visit to room 97 on the night of September 21st. Elizabeth did not use No. 95 because her aunt was afraid for her to sleep in there alone with the window open. The window was left open because it was a very hot night. She was with her aunt all the time in room No. 97, while Dhivall was there.

He “came to the room about twelve o’clock (according to Elizabeth and Mrs. German) to fix a faucet in the bath room which Mrs. German had asked him to fix earlier in the evening. Mrs. German says: “We went to our room and it was a very hot night, we had the window and door open. We sat there, Elizabeth was embroidering, and I was doing my nails; as usual, the door was open. I pushed a chair against the door, and we sat there between the door and the window, until about twelve o’clock.

I am sure it was quite that late. The man had not come to fix the faucet in the bath