Opinion
02-12-1894
McGRAIL v. McGRAIL.
Foster M. Voorhees, for petitioner. R. F. Henry, for defendant.
Petition by Francis McGrail against Jane McGrail for divorce for defendant's adultery. Granted.
Foster M. Voorhees, for petitioner.
R. F. Henry, for defendant.
GREEN, V. C. The petition charges the defendant with adultery in November and December, 1891, at a certain house in East Jersey street, in Elizabeth, with one Jerkelson, and in February, March, and April, 1893, at the same place, with Martin Shannon. These parties were married in August, 1867, and continued to reside together until the year 1889, when the husband left his wife on the ground, as he alleges, that she had become a common drunkard. He was the owner of the house in which they lived, and permitted her to remain therein, and retain the rents for her own use. She almost immediately thereafter brought an action against him for maintenance and support, and some time after that he filed an answer and cross bill charging her with adultery. He was granted a divorce in this court upon the charge made, (22 Atl. 582,) which, on appeal to the court of errors and appeals, was reversed, (25 Atl. 963.)
The petition in this cause was filed June 29, 1893, and alleges acts of infidelity other than those charged in the former suit The evidence in this case shows that the defendant occupied the front room on the first floor of the house, and that she rented out the remaining portions thereof, there being two other rooms on the first floor and some rooms on the second floor. The stairs from the second floor lead into the middle room of the first floor, and another flight out into the back yard. The evidence in this case tends to show an intimacy on the part of the wife, while thus living alone, with several men, and that she was in the habit of having such company until late hours of the night. The testimony clearly shows that whatever affection she may ever have had for her husband had been entirely extinguished, and that she was addicted to the intemperate use of liquor. The man named in the petition (Jerkelson) is a Norwegian by birth, whose correct name seems to be Severon Turtleson, and who is also called Thompson, but there is no question as to the identity of the individual. Counsel made a motion to amend the pleadings by inserting his correct name, which may be done if necessary. This man formed the acquaintance of the defendant by going to the house to see a friend of his who lived there, and was a frequent visitor. The testimony implicating him is by two witnesses. Mrs. Rebecca McKelvey says that Turtleson (whom she calls Thompson) used to visit Mrs. McGrail, and that she (the witness) was introduced to him by the name of Thompson. That she (the witness) occupied a room up stairs, and the defendant the front room down stairs. That the middle room, which the stairs from her quarters led into, was at the time unoccupied; and that on one evening in November, 1891, at about half past 9, she went down stairs to lock up the apartments, as she usually did, and on this occasion took some coffee to offer the defendant; and, after going down stairs she passed into the front room, where she found this man Thompson in bed with the defendant. The defendant refused to take the coffee, and said that she wanted some whisky, but told the witness to ask Thompson to take it. but he said he did not want any, but wanted to go home; whereupon the witness told him to get dressed, and she would let him out of the house. That both he and the defendant were undressed and in bed at the time, and his coat was on the table. Witness then went back to her room, where she remained for a short time, and then returned, and when she got down stairs again he was dressed, and had his watch in his hand, but could not see what time it was; and that she (the witness) looked at it, and found it was near 10 o'clock. When the witness came down stairs the first time, she found Thompson and defendant together in bed. They were both undressed, his coat was on the table, his shirt was off, and he was all undressed except his drawers and undershirt; and he wanted to go home, but the defendant did not want him to leave, and he asked the witness to let him out The defendant's intimacy with this man does not rest solely upon the testimony of this witness. Charles Peterson, who, some time in the fall of 1891, occupied the middle room on the first floor, which adjoins the room of the defendant testifies that he knew Turtleson, and that he was there at the house, and on one occasion in December he came there at about 9 o'clock in the evening, and stayed until 5 o'clock the next morning; and that he heard Turtleson and the defendant in the next room during the night. About 11 o'clock Turtleson went out, and came back again, as he supposed, with something to drink, and they were talking and laughing during the night, so that the witness could not sleep. That he went out in the yard about 5 o'clock in the morning, and, as he was standing in a gateway between the front and back yards, he saw Turtleson come out of the door leading from the defendant's rooms to the stoop, and in that way pass out into the street. The defendant and Turtleson were both examined as witnesses, and denied all improper intimacy in a general way; but this testimony of Mrs. McKelvey and Peterson is otherwise unimpeached, and must be taken as sustaining the first charge in the petition. The testimony of Mrs. Decker and her daughter, if credible, leaves no room for doubt as to the second charge. They are unimpeached as credible witnesses, and the story is not discredited by any testimony other than that of the defendant and her alleged paramour. The story is, however, so improbable, that, inthe light of the decision of the court of appeals in the former ease between these two parties, I should much hesitate whether it could properly be made the basis for a decree. Taken, however, in connection with the other testimony, its positive character, the want of motive on the part of the witnesses to falsify, the habits of intoxication of the defendant, and other circumstances impeaching her fidelity to her marriage vows, lead me to a belief in the truth of the statements. The testimony of the girl is that she heard a scuffling and a fall upon the floor of the room in which Shannon and the defendant were. The witness was on the stoop, and the window of the room, her mother says, was partly open. Miss Decker says she heard the voice of the defendant it may be that these parties, being on the floor in each other's embrace as the result of the contention or scuffling, gave way to the indulgence of their passion, regardless, if indeed they were aware, of the danger of their act being witnessed by any one on the stoop.