The appellant Kohlhoss sued the appellee Mobley in the Circuit Court for Montgomery County for criminal conversation with the former's wife. Mobley pleaded non cul. and after joinder of issue the case was moved on Kohlhoss affidavit to the Circuit Court for Frederick County where it was tried.
On the trial of the case the defendant, at the close of the testimony for the plaintiff, offered a prayer asking the Court to instruct the jury that there was no legally sufficient evidence from which they could find for the plaintiff, and that therefore their verdict must be for the defendant. The Court granted the prayer and a verdict was rendered for the defendant, and a judgment entered thereon from which the plaintiff appealed.
There was evidence on behalf of the plaintiff legally sufficient *Page 206 to support a verdict in his favor, if it had not also appeared, in the opinion of the Circuit Court, from the uncontradicted evidence that the plaintiff had debarred himself from asserting a right of recovery by his own connivance at the intercourse complained of between his wife and the defendant. The counsel for the appellant did not in the argument controvert the proposition that connivance on the part of a husband when properly established bars an action for crim. con. as it does a suit for a divorce, but they insisted that connivance is always a question of fact to be determined exclusively by the jury, and that the Court below erred in refusing to permit the jury to pass upon the evidence as to its existence in the present case. The question whether the plaintiff in an action like this connived at the misconduct of his wife is primarily one of fact for the jury. It may even be said that, as the essence of connivance is consent which like malice or good faith constitutes an unseen motive of human conduct, it is especially a question for the jury. But the connivance is not proven as an independent fact. It is usually established as a conclusion from a line of conduct pursued by the husband in relation to his wife's intercourse with and relations to the alleged paramour. If therefore the conduct of the husband as established by undisputed evidence or admitted in his own testimony is such that a rational mind could draw no other conclusion therefrom than that he had consented actively or passively to the conduct on the part of his wife and the defendant of which he complains, the question would become one of law for the Court which in that event would not only be justified in taking the case from the jury, but it would become its duty to do so.
The authorities are in substantial accord as to the character and degree of connivance requisite to bar an action of crim.con. The conduct of the husband must be such, when subjected to the test of reasonable human transactions, as to show an intention to connive; and here as elsewhere the presumption of the law is in favor of honesty and correctness of purpose, but the husband like other persons is chargeable with an *Page 207 intention to produce the necessary and legitimate consequences of his own deliberate action. A passive connivance has been held to be as effectual as an active one to bar the action. LORD STOWELL in Morson v. Morson, 3 Hagg. 87, said, "The first general and simple rule is if a man sees what a reasonable man could not see without alarm, if he sees what a reasonable man could not permit, he must be supposed to see and mean the consequences. * * * The presumption of the law is against connivance, and if the facts can be accounted for without supposition of an intention (to connive) the Courts will incline to that construction * * * However, though to bar the husband there must be intention on his part, I have no difficulty in saying that mere passive connivance is as much a bar as active conspiracy." In Dennis v. Dennis,68 Conn. 194, it is said "Connivance may be the passive permitting of the adultery or other misconduct as well as the active procuring of the commission; if the mind consents there is connivance." Both of the foregoing cases were cited and relied on by us in Barclay v. Barclay, 98 Md. 371, where we said "Connivance is said to be the consent or indifference of the complainant to the misconduct complained of as a cause of divorce. The defense is in the nature of an estoppel, and is generally set up as a defense to adultery only although the principle may be applicable to other causes for divorce."
It has been held that a husband who has not directly or indirectly put opportunities of committing adultery in the way of his wife will not be guilty of connivance for merely allowing her to utilize an opportunity for committing adultery which she has arranged without his knowledge or participation. And he may do this for the purpose of obtaining evidence against her, but he must not make opportunities for her or smooth her path to the adulterous bed. Wilson v. Wilson, 154 Mass. 194; Morrison v. Morrison, 140 Mass. 528.
Let us now examine the facts of the present case in the light of the principles which we have stated.
The following facts appear from the uncontradicted evidence on behalf of plaintiff contained in the record. In January, *Page 208 1895, he was married, his wife being then about 20 years of age. About 1899 suspecting her of infidelity with a man other than the defendant he followed her to Washington, and finding her at the same theatre with the man upbraided her and told her she could go home or where she pleased. She returned to her father's house and remained there for several months when her husband, having concluded that her relations to the man had not been criminal, received her back to his house and their marital relations were fully restored.
In February, 1900, Kohlhoss, with his wife took up his residence at the village of Derwood, in Montgomery County, and opened a small grocery store in the building in which he resided. He also conducted a huckstering business and was frequently absent from the store driving his huckster's wagon. His wife assisted him in conducting the store, generally occupying a position at the desk standing near the rear end of the storeroom. Mobley, the appellee, who resided at the distance of only one-eighth of a mile from the store, began to deal with it when it was first opened and soon became one of its best customers. His visits to the store increased in frequency to such an extent that for a year or more prior to September, 1903, he spent according to Kohlhoss' own testimony "three-fourths of his time" there. Kohlhoss when asked how Mobley occupied his time when at the store replied, "He generally sat near the desk, my wife was at the desk, he paid attention to my wife."
About the first of September, 1903, Kohlhoss observed certain conduct of his wife and Mobley which he says for the first time aroused the suspicion in his mind that illicit relations existed between them, and caused him to watch their movements more closely. On two separate evenings thereafter he saw his wife leave the store about nightfall and go in the direction of a neighboring graveyard and remain for about an hour. Mobley followed her each time after an interval of three or four minutes and did not return to the store. On another day when he heard his wife and Mobley whispering to each other in the store for four or five minutes he managed *Page 209 to get near enough to them to overhear part of their conversation which he describes as follows: "He (Mobley) was after her why she did not come out that night. She gave him some excuse that she went out and fell into the hands of some girls and she could not meet him." Early one morning about the middle of September while Kohlhoss and his wife were still in bed they heard a rattling at the store door below them. He got up to see who it was and saw that it was Mobley and so informed his wife and then started to dress in order to go down and open the door, but his wife urged him to return to bed and volunteered to go down for him saying that it was not Mobley at the store door. Kohlhoss returned to bed for a few minutes until his wife had had time to get down stairs and then got up and followed her down, where he found that she and Mobley were in the rear part of the store with the doors closed and from scuffling which he heard in there he suspected that they were having carnal intercourse with each other. He neither interrupted them nor made any outcry, but went up stairs and fruitlessly endeavored to induce his brother, who was a visitor at his house, to go down and enter the store with him as he said he was afraid of Mobley. That interview between Mrs. Kohlhoss and Mobley in the store was permitted to continue fifteen or twenty minutes without interruption until Mobley voluntarily went away, having in the meantime made a purchase from the store.
Kohlhoss, neither during nor after these occurrences, made any protest or objection to his wife in reference to her conduct with Mobley or her supposed relations to him, but he went to Washington and employed Bradley's Detective Agency to send two men up to Derwood to find some evidence of his wife's infidelity. After remaining a day the men told him it was impossible to accomplish anything by detectives around Derwood, whereupon he sent them back to Washington and told them not to go any further until they heard from him.
During the early part of September Kohlhoss had several times while in the store seen notes secretly passed to his wife *Page 210 from Mobley and had seen her after reading them tear them up and throw them away. Kohlhoss afterwards collected the fragments of the notes and put them together and found their contents to be ambiguous but not necessarily incriminating. On the 23rd of September, however, Kohlhoss recovered the fragments of a note which he had seen Mobley secretly pass to Mrs. Kohlhoss in the store, which, when put together, read as follows: "I am thinkingof going to the city on the milk train in the morning. Will itsuit you to go, if so go on the electric cars and I will see youat the same time and place as the other time, of course if itwill not suit say yes, so I will know what to do." On the same day after Kohlhoss had gotten possession of this note, his wife proposed to him that, as he was not feeling very well, she would go to Washington in his stead on the next day to make purchases for the store. He, instead of forbidding her to go, or warning her of the danger of the course she was pursuing, consented that she should go. Having thus not only consented to but assisted in perfecting the assignation between his wife and Mobley, he at once notifid Bradley, the Washington detective, of the finding of the note and of his wife's intended visit to Washington on the next day and asked him to put his men on the lookout for her. On the next morning Kohlhoss took his wife to the train as she started for Washington to keep her assignation, purchased a ticket for her and kissed her good-bye, and then he went promptly by another road to Washington to await developments. Without pursuing the details of the evidence on this subject it is sufficient to say that Mobley went to Washington on the same train as Mrs. Kohlhoss and they were followed by the detectives to a house known as the Cosmopolitan Hotel where they remained together for sometime in a private room.
The plaintiff further offered in evidence a paper purporting to contain a written confession by his wife of having committed adultery with Mobley during their interview at the hotel and on previous occasions, not specified, at Derwood, and he offered to also prove by competent testimony that she had signed the alleged confession at the office of her husband's *Page 211 attorney two or three hours after the interview with Mobley at the hotel, but the Court sustained the objection of the defendant to the admission of the alleged confession and the offered testimony.
The facts which we have mentioned, all proven by uncontradicted evidence on behalf of the plaintiff and almost all of them by his own testimony, cannot fail to prove to any reasonable mind such a course on the part of the plaintiff, both before and after the time at which he states that his suspicions as to his wife's chastity were aroused, of indifference to and acquiescence, in the habitual conduct and attitude of his wife and Mobley toward each other, as not only deprived her of his marital protection but afforded to their incipient amour full opportunity to develop and mature into her complete dishonor. This line of conduct on the part of the plaintiff — who was not a stranger to his wife's weakness for other men — in reference to her liaison with Mobley, which was largely conducted under his own eyes, amounted in our opinion to such connivance as to effectually debar his right of recovery in this case. We, therefore, hold that the Circuit Court committed no error in withdrawing the case from the jury.
The view which we have taken of the effect of the plaintiff's own conduct upon his right to recover in this case makes it unnecessary for us to notice the ruling of the Circuit Court upon the admissibility in evidence of the alleged confession of the wife further than to say that we find no error in that ruling. The alleged confession purports to be a recital of past events made by one not a party to the case out of the presence of both plaintiff and defendant and having no authority to bind either of them.
The judgment appealed from will be affirmed.
Judgment affirmed with costs.
(Decided November 23rd, 1905.) *Page 212