Moore v. Moore

The action is for divorce on the ground of adultery; the complaint being based solely on the claim that plaintiff contracted! the venereal disease from defendant in January, 1910. Defendant denies the charge, and sets up specific acts of adultery on the part of plaintiff. Each asks for a divorce against the other.

The parties were married January 28, 1903, separated some time in March, 1910, and the action was commenced in October, 1911. Up to the time of their separation the parties resided in the village of De Grasse, St. Lawrence county. On December 28, 1909, defendant left his home in said village to work in a lumber camp at the Windfall, in Clifton, an adjoining town. He worked there until January 15, 1910, when he returned home. Plaintiff visited defendant at the camp once early in the week of defendant’s return, and slept with him on that occasion. It appears from defendant’s testimony, and it is not denied, that the parties cohabited for about a week or 10 days after defendant’s return. About a week or 10 days after such return, plaintiff claims that she became ill, and that'she was advised by defendant to seek treatment from a certain doctor residing in the village of Hermon, in said county. She was treated by this doctor 10 or 12 different times at intervals of 4 or 5 days. The treatment, according to plaintiff, was for “a bad disorder”; according to the doctor, for “a venereal disease.” Defendant says that he did not have any venereal disease when he left the camp, and denies that he ever told plaintiff’s brother that he had contracted such a disease at the camp, but he admits that he had and treated himself fo'r “a bad disease” after his return. Just when he contracted this disease, or when He commenced treatment for it, does not appear. Defendant says that his wife' was the only woman with whom he had intercourse at any time. He was at the camp during all of the time of his employ

[1] In the case of Johnson v. Johnson, 4 Paige, 460, the fact of a husband’s having the venereal disease long after marriage was held to be prima facie evidence of adultery. Other cases, however, are to the effect that the adultery of the husband cannot be inferred from the mere fact of the wife’s being tainted with the venereal disease, although she herself is not suspected of adultery. Ferguson v. Ferguson, 1 Barb. Ch. 604 ; Id. (second trial) 3 Sandf. 307 ; Id. (third trial) Seld. Notes, 249; Homburger v. Homburger, 46 How. Prac. 346; Auld v. Auld (Super. Ct.) 16 N. Y. Supp. 807 . In the case of Ferguson v. Ferguson, supra, there was no evidence of any adultery by the husband, except by implication from certain stains on his linen, supposed to result from venereal disease, and it was held, on the first and second trials, that the verdict was unauthorized. The court declined on the third trial to interfere with the verdict of the jury. In the case of Homburger v. Homburger, supra, it was held that a wife cannot obtain a divorce from her husband on the ground of his adultery, without further testimony, where the evidence is insufficient to show that he had the venereal disease, or that he communicated it to her. ' This case cites the case of Collett v. Collett, Jud. Com. of Privy Council, Wadd. Dig. 38, where it was distinctly held that the adultery of the husband cannot be inferred from the mere fact of the wife’s being tainted with venereal disease, although she herself is not even suspected of adultery; that the existence of such disease in the wife is consistent (1) with adultery of the husband, (2) adultery of the wife, (3) with accidental communication of it; and that, where there is no proof of the husband’s having been himself diseased at the time specified in the libel, it will not be ascribed by preference to the first of these causes, even though it appears that at a former time he had infected his wife. The case of Auld v. Auld, supra, is to the same effect.

[2] The evidence does not show any specific act or acts of adul

[3] In addition to this, assuming that defendant communicated the disease to plaintiff, it seems to me that the evidence is not sufficiently clear to warrant a finding that plaintiff did not condone any act or acts of adultery of which defendant may have been guilty. Plaintiff, it is true, says that she did not cohabit with defendant after the discovery by her that she had contracted the disease and! after she commenced to receive treatment for it, but the evidence shows that she' continued to live and to sleep, with defendant for a period of six weeks or more thereafter, excepting the times when she was away from home for the purpose of receiving treatment.

[4] In the same way the evidence of defendant on the counterclaim seems to me to be insufficient to warrant a finding against plaintiff. That evidence may excite suspicion, but a finding must have something more than suspicion for a basis.

Judgment accordingly.