delivered the opinion of the court:
After a careful consideration of the record in this case, and upon both oral and written arguments, we have arrived at the conclusion that the decree entered by the learned chancellor in the Superior Court is erroneous. We are satisfied with the decree in so far as it found that the evidence was not sufficient to sustain the allegations of the cross-bill that the plaintiff in error had been guilty of extreme and repeated cruelty to his wife; and in support of the charge of adultery against him no evidence whatever was introduced. We have no doubt, from the evidence, that, even before he suspected her of actual infidelity, the many instances which the evidence shows Stiles became aware of when Mrs. Stiles failed to observe that sense of propriety in her association with her friends of the opposite sex which, as a wife and mother, it was her duty to observe, caused him to use harsh language to her, and on one or more occasions to resort to slight physical violence, but the evidence falls far short of establishing the charge of extreme and repeated cruelty. Besides, the law is well settled in this State that extreme and repeated cruelty is not sufficient as a recriminatory defense to the charge of adultery. Bast v. Bast, 82 Ill. 584.
That the letters, and the facts and circumstances set out in the preceding statement of the case, show that an undue and improper intimacy existed between Mrs. Stiles and Crane would seem too plain for controversy. Whether they alone would be sufficient to establish the charge of adultery it is not necessary here to determine, for the reason that many other incriminating facts appear in the evidence, which, when taken in connection with these letters and the incidents connected with them, lead with relentless force to the conclusion that the charge is true. It may not be true that they committed adultery on the second of July, at the home of the Cranes at Lake Geneva; but if no criminal relations had previously existed between them, the evidence showed a rude invasion by Crane of the privacy of Mrs. Stiles in her bed chamber at a late hour of the night, when he had every reason to know, or at least to believe, that all others in the house were then in deep sleep, and which, when taken with the previous clandestine meetings between them and her letters showing their affectionate relationship, together with the conflicting accounts which she gave of the incident,—one to her husband and Mrs. Crane on the same night after the occurrence and the other on the witness stand, the former inculpating Crane and the latter exculpating him,—and her letter to Mrs. Crane written onjy eight days after the event, and her subsequent intimate relations with Crane, tend with much force to show the willing mind on the part of both, although the circumstances may also show that the occasion mentioned was inopportune for the actual commission of the act. That he did go into her bedroom on this July night in a state of undress and under the suspicious circumstances shown by the evidence is not only clearly established, but is not even denied or in any way explained by him. That, if his purposes were not evil, he was subjecting Mrs. Stiles and himself to the worst possible misjudgement, and was taking every risk of deeply offending her as well as her husband, as a man of ordinary intelligence he must have known. That she was not, by all that occurred, really offended by his act and did not thereafter avoid him is also clear. That she did a few days afterward, in her remarkable letter to Mrs. Crane, express her deep and long-continued interest in Crane, and declare, in language though somewhat veiled yet in meaning unmistakable, her purpose not to give him up but to cling to him, is also beyond the realm of controversy. After the separation from her husband, which occurred within two weeks after the episode at Lake Geneva, her intimacy with Crane increased, and their constant association became such, and under such circumstances, that as a woman of intelligence, as the evidence shows her to have been, she could not help but know that by the common consent of the community but one opinion, and that the worst, would inevitably prevail as to her relations with Crane. We cannot believe that an innocent woman would so demean herself. Even if, in favor of innocence, the theory could be advanced that because of uncon geniality or unkindness of her husband she had become estranged from him and had become enamored of Crane, and indulged the hope that some day all obstacles to their marriage might be lawfully removed, still, as a woman free from actual guilt, she would necessarily have been all the more circumspect in her conduct with him. It is no answer to say that both Stiles and Mrs. Crane believed at the time that Mrs. Stiles was innocent. It is clear that Stiles was loth to believe her guilty, and it was no discredit to him that he retained his faith in his wife until the evidence of her unfaithfulness was all but conclusive. As before said, it may be true, and the circumstances may have been such, that no act of adultery was or could, without detection, have been committed on the second of July, and as matters then stood—the evidence of the letters and many other incriminating circumstances contained in the record being then unknown to them—Stiles and Mrs. Crane might well have refused to believe in any impropriety on the part of Mrs. Stiles.
The trial of the case occupied the attention of the court many weeks, and the volume of evidence is so great that no extended review of it can be here made, but it is proper that such additional facts not hereinbefore sufficiently set forth, in connection with those already mentioned, should be adverted to.
Only a few months before the incident on the night of the second of July, and the next morning after her return from the south with her mother and sisters and in the company of Crane, in a letter to Crane Mrs. Stiles wrote this: “This is not what I want to say to you, dearest; it is this: I went to sleep last night lulled by the sweetest recollection, and the last promise I made you has been kept and will be forever more. My reason for writing this to you is this: when dark fancies enter my mind one word from you can send them into forgetfulness, and I thought you might care to hear me say I am still yours. Tuesday afternoon I am going to be down town. Let me hear what time you will care to see me. Monday afternoon’s mail.” In her testimony Mrs. Stiles attempted to explain this letter by saying that the promise referred to which she had made to Crane was to tell her husband of her trip to New Orleans to witness the Mardi Gras festival and of what had occurred there, and if he were angry at her for leaving Pass Christian, as it was understood she was not to do, that she would bear with his anger, and after a full explanation endeavor thereafter to make the best of her lot in life and continue to live with him. She also testified that in that conversation with Crane, before she made the promise, she had told him for the first time of her domestic unhappiness, of her husband’s suspicions of her, of his harsh language and overbearing conduct toward her, and of her purpose to leave him and go to her mother, but that Crane induced her to continue, for a while at least, with her husband, and that she had promised him to do so. In view of all the evidence we regard this explanation as wholly unreasonable and its truth improbable. The letter itself is susceptible of no such interpretation, and the subsequent conduct of Crane and herself, taken in connection with the terms employed in the letter, leads to the only reasonable conclusion: that she had promised Crane that her devotion thereafter should be to him rather than to her husband. Even if she had promised a man of Crane’s characteristics that she would try to regain her husband’s confidence and to continue thereafter to perform her duty as his wife and the mother of his child, it is hard to believe that she could, under the influence of such sentiments of honor and duty, have in so short a time written to Crane such a letter showing such a complete surrender of her affections to him, and giving as a reason for writing that she thought he might care to hear, not that she was striving to do her wifely duty, but, to use her emphasized words, “to hear me say I am still yours,” and ending with a postscript requesting him to fix a time when he could meet her “down town.”
The events that followed each other in such rapid succession after this letter was written, leading up to the separation between herself and husband and showing her intimate relations with Crane, are wholly inconsistent with her explanations made as a witness in her own behalf, and are far more consistent with the view that she had promised Crane to break finally with her husband. It is seen that immediately upon the separation she wrote to Corey, a mutual friend of herself and Crane, requesting him to go at once to the train upon which she expected Crane to arrive from Lake Geneva, intercept him, and to tell him to meet her at a certain hotel. The meeting took place as arranged. Whether or not at this meeting it was planned between them to take up their abode together can but be determined by their subsequent conduct. After a short trip north she returned, and instead of going to live with her mother and sisters, who kept house and lived in comfortable circumstances in Chicago, as she testified she had on her return trip from the south told Crane she intended to do, she rented a flat and furnished it with money a large proportion of which was provided by Crane, and took up her abode ostensibly alone, having only a housekeeper with her, with the intention, as she testified, of keeping boarders. But she had no boarder but Crane. While the evidence tends to show that she obtained considerable sums of money from her mother, yet in addition to providing money to aid in furnishing the flat, Crane paid her varyiug amounts for his meals which he took with her, ranging from §45 to §75 per month, and though left in some uncertainty, the evidence tends to prove that he guaranteed the payment of the rent also. While she testified that she paid the rent herself and repaid to Crane all the moneys he advanced to her, we think it is fairly deducible from the evidence that the establishment which she set up was supported principally at Crane’s expense. But be that as it may, the life they led during her occupation of this flat was, under all of the circumstances, judged by the common observation of men and by the rules of evidence, wholly inconsistent with that virtuous conduct which she testified that she and Crane always observed. While it was hot his habit to occupy lodgings at this flat occupied by Mrs. Stiles, and she and her housekeeper, Mrs. Allen, testified that he did not occupy a room there but two or three nights, still he was with her, there and elsewhere, nearly every day and evening. They drove together constantly, attended the theater together evening after evening, and on their return he would stay until late into the night, and on one occasion, when watched by others, he remained all night. This occurrence she explained by testifying that they observed some brutal-looking men loitering about the house watching it, and that she prevailed upon Crane to stay as a matter of safety to himself, and to bear witness to her innocence should it be assailed. It was assailed, but Crane sat silent at the trial under the imputation, and suffered her to bear the burden of explaining the occurrence as best she could. Witnesses testified that during their occupancy of this flat Crane and Mrs. Stiles were seen kissing and caressing each other, and on one occasion, near two o’clock in the morning, there was a disturbance in the hallway caused by the arrest of a burglar or else a drunken man, which caused a number of the occupants of the several flats opening into the hall to come into the hall; that among them were Crane and Mrs. Stiles, who presented the appearance of having hastily and incompletely dressed themselves. Mrs. Stiles admitted the incident, but denied that they were not properly dressed, and testified that they were disturbed by the noise in the hall while they were engaged in a game of parchesi, and that nothing improper had occurred-between herself and Crane.
In February, 1893, Mrs. Stiles took another trip to the south. It does not expressly appear that the trip was planned with Crane, but it does appear that he preceded her and went on a hunting trip to some point in the State of Mississippi, and was at the railroad station at Holly Springs when the train upon which Mrs. Stiles and others, some of whom were acquaintances of hers, were then passengers. She testified that she had no agreement to meet Crane there, but she admitted that she thought he might possibly be there. Her actions, as shown by the evidence, indicated that she expected to meet him at that point, and there can be no doubt, from the facts disclosed, that they met by appointment. Crane accompanied her from Holly Springs to New Orleans, and one witness testified to acts of Crane while seated beside her in the car, of undue familiarity between them; These acts were not seen by other witnesses called, who testified that Crane sat in the same seat with her but that they saw no improper familiarity between them. The entire party stopped at the same hotel at New Orleans, and after spending several days in that city, upon Crane’s invitation Mrs. Stiles went with him and others to Cuba. Aside from being constantly, and usually exclusively, in each other’s society, and at places and under circumstances affording opportunities for illicit intercourse, no such act, nor any indecent act, at New Orleans or in Cuba, or on the way there, or back to Chicago on their return trip, which they made together, was shown. During her absence the flat which she had occupied in Chicago was injured by fire, and on her return she took and furnished a room in the fiat occupied by her mother and sisters on Oakley avenue, where Crane continued to visit her as before. He passed much of his time with her and kept his dress suit there. One witness testified that while she was occupying this room he (witness) lived in rooms facing it, across the street, and that he saw Crane in her room at night, and saw them embracing and kissing each other and lie down across the bed together. Two other witnesses testified to seeing them kiss each other while she lived there. Many other acts of undue familiarity were testified to by other witnesses as having taken place at other times and places, which swell the volume of proof against defendant in error and the co-respondent. One of the most important of these, indicating guilt, occurred shortly before Mrs. Stiles separated from her husband, in July, 1892. The superintendent of certain buildings, among which was the one in which Stiles lived, was sent to repair a door to Stiles’ bath-room. He testified that while engaged in that work; between nine and ten o’clock in the morning, after Stiles had gone to his place of business, he saw Crane, dressed only in his night shirt, open the door of Mrs. Stiles’ bedroom from the inside and start to come out, but on seeing witness quickly closed it. Other testimony showed that Crane was a visitor there at that time, and that he frequently took breakfast with Mrs. Stiles after her husband had gone to his daily work.
After the trial had commenced in the Superior Court, Mrs. Stiles, accompanied by Crane, went to St. Charles, in Kane county, where she rented a house and took up her abode. She testified she was advised by her physician to seek a home outside of Chicago for the benefit of her health, and gave as another reason that her mother and sisters desired and intended to spend a part of their time with her there. But it does not appear that they did so. Crane took up his abode there also in the same house, and he and Mrs. Stiles continued their association, going to and returning from Chicago together while in attendance upon the hearing' of this cause in the trial court.
As before indicated, we shall not undertake to review, nor even to advert to, all the incidents detailed in this voluminous record which combine to establish the guilt of Mrs. Stiles of the charges made in the bill of complaint. We have referred to a sufficient number of particular acts, which we think were proved by the evidence, which, in connection with the long-continued and admitted improper association of these persons and their affectionate correspondence, establish the fact of adulterous intercourse between them with too much certainty to be ignored. It is sufficient here, as in other civil causes, if the allegations of the bill are sustained by a preponderance of the evidence.
It is the generally conceded rule, and one even adopted in the Criminal Code of this State, that the offense of adultery shall be sufficiently proved by' circumstances which raise the presumption of cohabitation and unlawful intimacy. (Rev. Stat. p. 354, sec. 12; Daily v. Daily, 64 Ill. 329; Bast v. Bast, 82 id. 584.) See, also, 2 Greenleaf on Evidence, secs. 40, 41, 43, where it is said: “The nature of the evidence which is considered sufficient to establish the charge (adultery) before any tribunal has been clearly expounded by Lord Stowell, and is best stated in his own language: ‘It is a fundamental rule,’ he observes, ‘that it is not necessary to prove the direct fact of adulterjr, because, if it were otherwise, there is not one case in a hundred in which that proof would be obtainable. It is very rarely, indeed, that the parties are surprised in the direct .fact of adultery. In every case, almost, the fact is inferred from circumstances that lead to it by fair inference as a necessary conclusion, and unless this we^e the case and unless this were so held no protection whatever could be given to marital rights. * * * The only general rule that can be laid down upon the subject is, that the circumstances must be such as would lead the guarded discretion of a reasonable and just man to the conclusion, for it is not to lead a rash and intemperate judgment, moving upon appearances that are equally capable of two interpretations, neither is it to be a matter of artificial reasoning, judging upon such things differently from what would strike the careful and cautious consideration of a discreet man.’ * * * Upon such subjects the rational and the legal interpretation must be the same.”
While we are loth to disturb the findings of the learned chancellor of the Superior Court, who gave to the case such a thorough and patient hearing, and who, seeing the witnesses and hearing them testify, had better opportunities than we can have of detecting falsehood and discerning the truth, still, entertaining an opinion, from the evidence, so different from that arrived at by him, and by the Appellate Court in affirming the decree, that decree as entered cannot be permitted to stand. We are of the opinion that plaintiff in error is entitled to a decree of divorce and to the custody of his child.
The judgment of the Appellate Court and the decree of the Superior Court are both reversed, and the cause is remanded to the Superior Court, with directions to enter a decree in accordance with the views we have expressed, finding defendant in error, Lillian B. Stiles, guilty of the charge of adultery with Herbert P. Crane, dissolving the bonds of matrimony between plaintiff in error and defendant in error on that ground, and awarding the custody of the child mentioned in the bill to plaintiff in error, Everell D. Stiles, and dismissing the cross-bill of defendant in error for want of equity.
Reversed and remanded.