Harward v. Harward

Offutt, J., delivered the opinion of the Court. The parties to this appeal were married January 3rd,. 1925, at St. Patrick’s Church in Washington, D. C., and lived together until the summer of 1934, when J. Burleigh. Harward, the appellee, left the common home at Bush River, in Harford County, and has since lived apart from, his wife. After their marriage in 1925, Harward and his wife, Catherine E. Harward, the appellant, lived for a time in Baltimore, then they removed to Bel Air, in Harford County, then back to Baltimore, where they lived for a. time, and then back to Harford County.

Harward is employed by Sisk & Son as a saleman at an annual salary of $3,500, and has an office in Aberdeen, in Harford County. In 1930, Nancy, the first child of the marriage,, was born. At some time, apparently prior to 1934, he acquired, possession of a six-room bungalow at Bush River, a short distance east of Abington, on the Philadelphia Road, which he, his wife, and the little girl Nancy, occupied. until he left the home in July or August of that year.. After he left, Mrs. Harward and Nancy continued to occupy the bungalow until some time in the fall of 1934.

It was heated only by an open fireplace, and as the weather became colder Mrs. Harward was. forced to seek another home for herself and Nancy. She went first to her mother’s home in Laurel, where she-left Nancy for a few days, to go, she said, to see her husband about arranging a home for the future. After that she lived at different times at Barcroft, Virginia, at. ³⁴² College Park Inn, and at Terrapin Inn, at College Park, Maryland, at Havre de Grace, again at the bungalow at Bush River, and finally at Rosecroft Terrace in Baltimore, and she was confined for a time at the Bon Secours Hospital., While she was living at the bungalow, on herreturn there in 1935, on July 23rd, of that year, her second child, Mary Elizabeth, was born. On the 11th of October, 1935, J. Burleigh Harward, the husband, filed the bill of complaint in this case against his wife, in which he charged: “That although the conduct of your Orator toward his wife the said Catherine E. Harward, has always been kind, affectionate, chaste and above reproach, the Defendant Catherine E. Harward, compelled your Orator by her cruel treatment, vicious temper and threatened violence to leave in the latter part of July, 1934, the home he was occupying with said Defendant at Bar Harbor in Harford County, State of Maryland, since which time he has not lived or cohabited with the said defendant. “5.

That since your Orator has been compelled to leave the said Defendant, she, the said Catherine E. Harward, has committed the crime of adultery with a person whos§ identity is at this time unknown to your Orator, as a result of which adultery the said Catherine E. Harward, Defendant herein, was delivered of a female child on July 22nd, 1935, and that your Orator has not lived or cohabited with the defendant since the latter part of July, 1934, nor has he condoned the misconduct of the said Defendant.” The defendant answered, denied those charges, and the case was tried on the bill, answer, and testimony. At the conclusion of the trial, the court decreed: (1) That the husband be divorced a vinculo matrimonii from the defendant; (2) that she be awarded custody of their child, Nancy; that the husband pay to her for its support $12.50 per week; and (,3) that the custody and maintenance of the child remain subject to the further order of the court. ³⁴³ This is the wife’s appeal from that decree. The husband, in support of his bill, testified that he had had no sexual intercourse with his wife after their separation in the summer of 1934; he contended that the birth of a child on July 23rd, 1935, was therefore conclusive proof that she had been guilty of adultery; and he said that she had on more that one occasion admitted that to him. A motion to strike that 'testimony out was overruled on January 30th, 1937, and on August 19th, 1937, after the appeal was taken, the testimony was filed in the court.

Except for the husband’s testimony that he had not had marital relations with his wife after their separation, there was no evidence of any kind tending to prove that the wife had been guilty of adultery; no effort was made to show that she-knew or had even spoken to a man other than her husband and her physicians during the separation; so that the decree rests solely upon the finding that the child, bom on July 23rd, 1935, was conceived at a time when there was no possibility of marital intercourse between the husband and wife, and the necessary inference that some person other than the husband was its father. The issues in the case were: (1) The possible period of gestation; and (2) possibility of intercourse between the husband and wife at or about the inception of that period. No evidence was offered in respect to the first issue, but both sides appear to have accepted the view that the period of gestation in human beings is a matter of such common and exact knowledge that courts will take judicial notice of it. The predicate of that conclusion is unsound.

Knowledge of the fact is neither common nor exact, but, on the contrary, the period of gestation has not only been the subject of extensive investigation and of differing conclusions, but its use in connection with the issue of legitimacy has been limited by statutes which fix its extent differently in different countries. So the French law allows the legitimacy of a child bom 180 days after marriage and 300 days after the death or non- ³⁴⁴ access of the husband; the Prussian law declared a child legitimate born 302 days after the husband’s death; in Scotland legitimacy was established if the child was born within ten months after the death of the husband. Reese, Medical Jurisprudence & Toxicology, 255. Reese also states: “There is a diversity of opinion among obstetricians of the highest reputation on the subject of the natural period of gestation—varying from 274 to 301 days.

It may be assumed that the average period is between thirty-eight and forty weeks.” That irregularity has been confirmed not only by the observation of human beings, but finds corroboration in the course of gestation in the lower animals such as cows, sheep, mares, and cats. Reese states that: “In the cow the average period of gestation is about 285 days; yet, from Dr. Krahmer’s tables, it is found that, out of 1,105 cows, 335 calved on the fortieth week, 429 on the forty-first week, and 135 on the forty-second week; the balance varied from the thirty-eighth week to the fifty-first week—a period of about 90 days.” Ibid, 149. In 3 Wharton & Stillé, Medical Jurisprudence, page 24, it is said: “Since the earliest historic times the normal duration of the period of gestation in woman has been held to be approximately nine calendar months, or ten lunar months. But the exact number of days necessary for the complete development of the fetus will remain open for discussion.

The period is apparently not the same in all women, varying even in the different pregnancies of the same woman. The great difficulty in determining the duration of pregnancy arises from the fact that while the one end of gestation can be determined by the day of delivery, the other end is always a matter of uncertainty.” The same author, in dealing with the method of reckoning from the cessation of the menses, says: “The general rule of Naegele is followed by most obstetricians. According to that we count ahead nine calendar months and add seven days to the date on which the last menses appeared. That computed date is the one on which labor may be expected; but a latitude ³⁴⁵ of a week before or after that day must always be allowed to include the majority of cases; only a very few will fall on that particular day.

As a basis for that rule the period of gestation is taken as 280 days. Here it must be remembered that ovulation may be a month off from the appearance of the menstrual flow, as shown by Leopold’s studies; also that pregnancy may begin after the menses have been suspended for some other reason for a longer or shorter period; and still further, the menses may continue during a portion, or even the entire pregnancy. However, from what has been supposed normal cases, various writers have estimated the duration of pregnancy from the last day of the menses as follows: Author Mean Minimum Maximum Devielliers 280 to 290 250 310 Reid 274 to 280 255 315 Murphy 281 to 287 252 326 Merriman 274 to 280 252 326 Gaston 267 to 273 246 308 Auvard 272 to 282 249 328 “Estimating a mean from these cases, Auvard finds the average duration of pregnancy from the end of the last menses to be from 275 to 282 days, with a minimum of 246 (Gaston), and a maximum of 328 (Auvard).” These references are not made to supply a substitute for proof not found in the record, but to illustrate the conclusion that neither the mean nor the extremes of the period of gestation in a woman is so commonly and precisely known that the courts may take judicial notice of them for the purpose of supplying a basis for a judi-, cial judgment or decree which will determine the status or the rights of parties to a marriage or the issue thereof. While, therefore, as stated by Reese (page 248), there is a “usual popular notion” that the period comprises nine calendar months or ten lunar months, there is no legal basis, either in the evidence or in any knowledge so common and definite that the courts may take judicial notice of it, for the appellee’s statement “that conception must have taken place between October 16th and October ³⁴⁶ 26th, 1934, to cause the birth of a normal child.” On the contrary, the period of gestation in this case should have been established as nearly as might be by competent medical evidence.

In the absence of such evidence the court is without proof or presumption on the point. Turning now to the evidence which does appear in the record, it is found to relate exclusively to the husband’s attempt to prove that he had no opportunity for marital intercourse with his wife within the possible limits of the period within which the conception which resulted in the birth of the second child must have occurred. He himself was his only witness in support of that contention, and his testimony may be thus summarized: He left his wife, he said, because she “nagged” him; that there was “just a habitual fight” over the fact that he had to be away so much at his work. He said he left the latter part of July, 1934, and did not return to the bungalow except on two occasions; one before Labor Day, and one on Labor!

Day. He saw her once in College Park, and once in Barcroft, Va. These visits were all apparently in the fall of 1934. On cross-examination, however, he admitted that at Christmas, 19.34, he saw his wife at her mother’s home in Laurel and drove her and Nancy to Havre de Grace.

In the early winter of 1935 she was living in Havre de Grace, and later lived for a while at the bungalow. In 1936 she had moved to Baltimore and he visited her twice there. In his testimony he gave this description of one of those visits: “Did anything occur on either one of those visits? You said you were there twice?

A. Yes. Nothing that I recall except one of her usual fainting spells when she asked me to come back and live with her and I refused to do it, then there was a lot of conversation from her as to why I should, and so. forth, and then a fainting spell and the lady of the house came in and I left. Q. You only went there, 'twice? A. Yes, sir.

Q. And you say you recall nothing but her usual fainting spells on both occasions? A. No, I don’t say that. Q. On one occasion? ³⁴⁷ A. On one occasion. That was not the faint, it was just a fall-down.

She was perfectly all right. Q. I meant when I designated it, I designated as you did the usual fainting spell. A. The usual bluff would be the better way to put it. Q. Well, the usual bluff.

What happened on that occasion? A. That was the day that she told me< that I was not the father of that child. Q. Did she have a fainting spell then? A. No. Q. Did she tell you who the man was?

A. She did not. Q. Did you ask her? A. I don’t know that I did that day. Q. Did you treat that as the same kind of a thing as the fainting spell, as a bluff or not?

A. That was not the day. Q. No; but you characterized the- other spell, or whatever happened, as a fainting bluff; did you consider this to be a bluff, too? A. No, sir, I did not. She was perfectly natural in every way and talked as nice as could be about the whole thing that day.

Q. And yet you can’t recall whether you asked who the father was or where he lived or anything about it? A. I expect I did ask her because I have asked her many times. Q. Many times since then? A. Many times since then.

Q. When did you ask her about that? A. She has been to my office a dozen times since to worry me. Q. And every time she came to the office she admitted you were not the father of the child? A. I did not ask her a dozen times.

I have only asked her once since— Q. You said she said it on a number of occasions after that. A. I did not say she admitted it on a number of occasions, one occasion. Q. I thought just now you said she admitted it on a number of occasions? A. No. * * * Q. Did you do anything to your wife to make her faint on that first call?

A. No, sir, I did not. Q. Did you use any indecent language to her? A. No, sir. Q. Did you ever use any indecent language to her?

A. What do you call indecent language? I have used curse words at times, swear words.” He was also- permitted to testify that his wife admitted to him that he was not the father of the second child, and that she first made that admission in February, 1936. The only evidence tending to corroborate his testimony ³⁴⁸ was a series of letters addressed to him by his wife, which showed that on respective dates of those letters lilrs. Harward was not in Harford County.

One letter from Mrs. Harward, sent from College Park October 10th, 1934, ■expressed regret that she and Nancy were not in when Harward called, which ended thus: “You will be welcome to come down and spend this week-end; you could sleep with Nancy and I could sleep by myself.” One from Mrs. Harward, sent from College Park October 17th, 1934, telling him when Nancy would be ready to leave, and suggesting that mail be addressed to the writer at Laurel. Letters dated October 5th, 1934, and November 2nd, 1934, and October 31st, 1934, indicating that the writer was in Washington on those dates and was expecting Harward to bring Nancy to Barcroft. On December 18th, 1936, Harward wrote his wife from New York as follows: “Catherine, received your letter but had to leave on road trip so unable to see Nancy. Hope she is better and that I will be able to get her about Jan. 3rd.

Expect to be away until 28th or 29th so cannot take Nancy for Christmas. I will however see that her presents are delivered Tues. or Wed. night before Xmas. Christmas wishes to all. J. B. Harward.” And on February 24th, 1935, he wrote her this letter: “Catherine, went over to see Nancy at 12:30 and you had her out.

Am enclosing checks dated 2/23 and another 3/2 for next week. I am going away and won’t be home for at least two weeks. Answer my letter so I’ll have it when I get home. Love to Nancy.

Burleigh.” He was permitted to testify that he 'had had no sexual relations with his wife nor opportunity for such relations after he left the home in the summer of 1934, and that she had admitted to him that he was not the father of the second child. A motion to strike out that testimony was overruled. Since the motion) was deferred until the close of the whole case, before considering it reference may also be made to the testimony of Mrs. Harward. It is apparent from the record that there was no legal justification for Harward’s leaving the Bush River home, ³⁴⁹ nor is there any basis for any inference that she knew that he intended thereby to terminate the marital relation between him and her.

On the other hand, it may be inferred that he was tired both of his wife and his home, and preferred to live elsewhere, and that, apart from contributing to her support, he was quite indifferent to her comfort, convenience, or whereabouts, and would have welcomed any opportunity of being rid of her. That impression is strengthened by her testimony. She said, speaking of the summer of 1934: “After Mr. Harward left, of course we had rainy spells there and it is cold and we had no furnace, we had the open fire place, and Ida, the ,girl that was just on the stand, she and I would go out on the beach and gather all the wood we could. Of course, if it was just myself, it would not make any difference, but I called Mr. Harward on one of the calls that he said I worried him, I am sorry, but I called him to tell him that the roof was leaking very badly in the kitchen.

He said he could not be bothered about it, either to make the best of it or leave there, it did not make any difference to him. May I use the word ‘damn’ ? He said he did not give a damn whether I stayed there or moved away. I said, ‘Well, I can’t stay here much longer, where shall I move to?’ T don’t give a damn where you go, you can go to hell as far as I am concerned.’ ” He failed to deny that statement and it