{ "id": 2476192, "name": "Leslie C. Hughes v. Grace B. Hughes", "name_abbreviation": "Hughes v. Hughes", "decision_date": "1907-05-13", "docket_number": "Gen. No. 13,258", "first_page": "654", "last_page": "664", "citations": [ { "type": "official", "cite": "133 Ill. App. 654" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "220 Ill., 334", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3347282 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill/220/0334-01" ] }, { "cite": "169 Ill., 286", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3184362 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill/169/0286-01" ] }, { "cite": "85 Ill. App., 20", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5268125 ], "opinion_index": 0, "case_paths": [ "/ill-app/85/0020-01" ] }, { "cite": "96 Ill., 492", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2716395 ], "opinion_index": 0, "case_paths": [ "/ill/96/0492-01" ] }, { "cite": "90 Ill., 74", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2756921 ], "opinion_index": 0, "case_paths": [ "/ill/90/0074-01" ] }, { "cite": "84 Ill., 78", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2653128 ], "opinion_index": 0, "case_paths": [ "/ill/84/0078-01" ] }, { "cite": "167 Ill., 576", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3091755 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill/167/0576-01" ] }, { "cite": "82 Ill., 585", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5313530 ], "opinion_index": 0, "case_paths": [ "/ill/82/0585-01" ] } ], "analysis": { "cardinality": 1107, "char_count": 22409, "ocr_confidence": 0.534, "pagerank": { "raw": 4.8172472706271035e-08, "percentile": 0.30248230688352873 }, "sha256": "52805a4aef426ebceecc9ac41cc7945820ff9296c2f5eab673541e47cdcb92cd", "simhash": "1:fadfa232f0670a72", "word_count": 3851 }, "last_updated": "2023-07-14T19:31:03.243405+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Leslie C. Hughes v. Grace B. Hughes." ], "opinions": [ { "text": "Mr. Justice Holdom\ndelivered the opinion of the court.\nThis is a cause matrimonial, in which hoth parties find the yoke which binds them irksome and galling and seek a divorce from each other under reciprocal charges of adultery. To her charge of adultery Mrs. Hughes adds one of extreme and repeated cruelty.\nBefore entering upon or discussing these recriminatory charges of adultery, we will dispose of Mrs. Hughes\u2019 accusation of extreme and repeated cruelty against her husband. It is firmly settled by the law of this State that a charge of extreme and repeated cruelty does not constitute a sufficient recriminatory defense to a charge of adultery. Bast v. Bast, 82 Ill., 585; Stiles v. Stiles, 167 Ill., 576.\nThis being the law, we do not regard it as either expedient or necessary to enter into an examination of the evidence touching this charge, or to decide whether or not the proofs were sufficient to justify the jury in finding the husband guilty upon this charge, for in the ultimate decision of this appeal it is of no consequence.\nThe custody and nurture of the two children, the offspring of this marriage, are involved in this appeal, and it is of material importance to their welfare that they should be entrusted to the innocent party, and not to the one guilty of adultery.\nThe verdict of the jury exonerated hoth parties from the charge of adultery made by each against the other. On the verdict finding the husband guilty of the extreme and repeated- cruelty charged, the court gave to the wife a decree of divorce, the custody of the children, alimony, solicitor\u2019s fees, and allowance for the-support of the children, permitting her to take the children out of the jurisdiction of the court and maintain them temporarily at Ann Arbor, Michigan, reserving certain privileges of visitation and temporary custody of them to the husband, and retaining jurisdiction for the purpose of changing the order as to the custody of the children and allowances for support and alimony. To reverse such decree this review of the record is sought. We will first dispose of the charge of 'adultery made by appellee against appellant.\nThe family of Clara .Beifeld, with whom appellant is claimed, by his wife to have been intimate, consisted of herself, her father, two sisters and one brother. They lived at 939 Ridgeway avenue, in a flat. The brother\u2019s name was Hagan; one sister, single, named Josephine, and the other sister, married and detached from her husband, named Saunders, who is the family housekeeper. In this family appellant, after separating from his wife, took his evening meal on secular days and dinner and supper on Sundays. Detectives were set to watch his movements, but their testimony is barren of incriminatory acts. They saw him go into the Beifeld flat building in the evening, and on several occasions they left their spying without noticing appellant\u2019s exit. Appellee says her husband took Clara Beifeld out riding, and that he once told her that he took Clara Beifeld to Ed Smith\u2019s roadhouse, that he had the finest steak he ever tasted, and that it cost $2.75 a plate. Otto Goersuch testified that on September 3, 1905, appellant, on board the Eastland during its voyage from Chicago to South Haven, introduced him to a young lady as he was passing them on the boat, and that he saw no more of them. The boat incident appellant denies. Ho adulterous inferences from this casual incident, if true, can be indulged.\nAs to Clara Beifeld she emphatically and positively denies any intimate or adulterous relations with appellant at any time. Appellant himself makes a like positive denial. Hagan Beifeld, the brother of Clara, corroborates appellant in relation to his visits to the Beifeld home, taking his meals there, and says further that appellant often lingered and played cards with the various members of the family until as late sometimes as ten o\u2019clock at night. That all such games were played in the presence of the family, and that appellant never stayed at the house over night.\nWhile it has been said that a court will not presume that a man who visits a house of ill fame did so for the purpose of engaging in religious devotions, but that a strong inference of carnal acts on his part will, unexplained, be assumed to have followed upon such visit; so it may with equal propriety be assumed that when a man goes into the dwelling place of a respectable family at meal times and there continues for a reasonable space of time, that he partook of the meal served at the family table, and not do violence to all logic and decency by holding that adultery with a maiden, against whose reputation for chastity there is neither evidence nor suspicion, was upon such an occasion committed. Without any denial, such an inference would be wholly unwarranted. But there is no room for inferences in relation to this charge. There is no proof of it; and the evidence in denial is consistent, overwhelming and convincing. We unhesitatingly concur in the verdict of the jury that Leslie G. Hughes is not guilty of the adultery charged against him by his wife in her cross-bill, and that such charges are baseless, and Clara Beifeld innocent of any sexual indiscretion with appellant.\nHaving disposed of all the charges against the husband, there remains for our consideration and determination the guilt or innocence of the wife of the adultery charged against her. Unhappiness seems to have sat upon the threshold of the married life of the Hughes, for three days after their wedding the wife forsook the nuptial couch for the home of her mother, and did not resume the marital relation until five weeks thereafter. Between the ringing of the marriage bells and the final separation in 1904 this mismated couple were separated fifteen times. Two children were born of this unhappy union, a son and daughter, Vivian and Ever el, who were thirteen and eight years of age respectively at the time of the trial, both of whom are said to be with their mother.\nWhile Mrs. Hughes was erratic in her domestic habit of living with her husband, yet no moral lapses smirch her wifely character until the blighting immoral influence of the co-respondent, Septimus E. Gauthier, crossed her path' in the summer of 1903. The Gauthier and the Hughes families lived within one block of each other, and became on very good terms, visiting in each other\u2019s homes frequently.\nThe first occult evidence of an improper attachment between Mrs. Hughes and Gauthier developed in July, 1904, on a trip to Toledo, where Mrs. Gauthier was visiting. The parties visited besides Toledo, Grand Rapids and Detroit, Michigan. Mrs. Hughes exhibited on the journey a marked preference for the society of Gauthier, which he seemed to reciprocate in full measure. They were constantly together, seeking each other\u2019s society and avoiding that of her husband and Mrs. Gauthier. At meals, in the cars, at the theaters, they were side by side. Appellant expostulated with his wife on her unmatronly conduct with Gauthier, and she thereupon retorted that she did not want to go home, that she did not care anything for her husband, that she was tired of him, and that she would go with Gauthier if she wanted to and he could not prevent her from so doing, whether he liked it or not. The parties reached their home abont August 1, 1904, and she next left her husband the twenty-first day of the same month. During these three weeks she was constantly seen with Gauthier. Two days afterwards Hughes saw his wife and Gauthier together on Adams street in the vicinity of Wabash avenue. He talked with both of them at that time, and asked his wife to go home, and objected to her going with Gauthier. She refused and again informed him she was tired of him; that she would go with Gauthier all she desired, that it was none of his business, and that no law could compel her to live with him if she did not want to. She returned to her home August 24, leaving again on August 30, and remaining absent from her home until November 26. Upon leaving August 30 she told her husband she would not remain in his home if she could not have Gauthier\u2019s company there. She once more departed, January 4, 1904, writing a letter in which occurs the following: \u201cLes: I am going away. I may be doing a foolish or wicked thing, but I am thoroughly convinced you are nothing to me. * * *\u201d She returned to her home once more; February 28, 1905, remaining until July 20 following, since which time she has not returned to her husband. He thereupon, on October 3, 1905, filed his bill for a divorce, alleging her adultery with Gauthier.\nHaving observed the absence of Mrs. JIughes from her husband, we will now see what the record discloses were her actions with Gauthier during these absences.\nAn occurrence fruitful of incriminatory evidence of the adultery of Mrs. Hughes and Gauthier is the contents of the trunk of Mrs. Hughes, which her husband secured at the \u00a1Northwestern railroad baggage rooms January 5, 1905. He opened the trunk in the presence of the witness Coleman, and this is what their testimony shows they, among other things, found: About six photographs of Gauthier, two brushes upon which were Gauthier\u2019s initials, a plated padlock containing several convention badges of Gauthier, on which was engraved \u201cLove laughs at locks,\u201d towels marked \u201cCecil,\u201d \u201cBrunswick,\u201d \u201cPlaza,\u201d \u201cBrevourt\u201d and \u201c\u00a1Revere,\u201d formerly the property of the hotels bearing these names in Chicago, and one marked \u201cPilgrim Hotel,\u201d of Marshalltown, Iowa. Out of the pocket of Mrs. Hughes\u2019 seal skin coat, which was in the trunk, he drew a chain and locket. In the locket was Gauthier\u2019s photograph, and on the outside of it was engraved an intertwining monogram composed of the letters \u201cG. B. G.,\u201d which it is admitted were intended for \u201cGrace Burgess Gauthier,\u201d Grace Burgess being the maiden name of Mrs. Hughes.\nOn Sunday afternoon, July 15, 1905, about two o\u2019clock, Mr. Hughes saw his wife in the company of Gauthier on the third floor of the Rensu Hotel in Wabash avenue south of Van Bur\u00e9n street. This discovery was made with the aid -of Vernet Marsello, a detective who was a witness upon the trial. Hughes swore out warrants for the arrest of both of them, although he only had it served on Gauthier, who was lodged in a cell at the Harrison street police station, and Mrs. Hughes appeared later and bailed him out.\nOn two occasions, January 27, 1905, and February 2, 1905, Mrs. Hughes and Gauthier for two days and five days respectively lived at the Wilson Hotel, Mason City, Iowa, and during all of their stay occupied the' same room. This is abundantly established by the testimony of the hotel'clerk and the hotel register.\nIn February, 1905, Mrs. Hughes admits she stopped at the Pilgrim Hotel, Marshalltown, Iowa, but claims to have registered as \u201cMrs. J. Brooks,\u201d and to also have registered at various other hotels under assumed names. She also admits, that after traveling around to various places she went to Ann Arbor in August, 1905, and kept boarders, among whom was Gauthier. , She admits borrowing money from Gauthier, also the present of the locket with his picture in it, and the meaning of the monogram on it. Mrs. Hughes also admits that her husband expostulated about her relations and evident intimacy with Gauthier, and confesses that she did not heed his admonitions or change her course with Gauthier.\nIn July, August and September, 1904, Mrs. Hughes and Gauthier were seen by Mrs. Cora G. Duffy at the rooming house, 575 West Madison street, three or four times, and on these occasions they occupied the same room.\nIrving Hasner, the landlord of the \u201cHotel Rensu,\u201d testifies that Gauthier and Mrs. Hughes occupied the same room in his hotel on the afternoon of Sunday, July 15, when Hughes called with the detective and made the arrest of Gauthier; that he went to the room and informed Mrs. Hughes that a man claiming to be her husband was at the office with another man. She opened the door. Gauthier had some of his clothes off, and she her hat. That Mrs. Hughes said she thought it quite likely it was her husband, and seemed much disturbed and alarmed. She urged Hasner to let her escape by a side entrance, and he did so by allowing a bell boy to escort her out that way.\nThe whole of this evidence is irreconcilable with Mrs. Hughes\u2019 innocence of wrongdoing with Gauthier. Her excuses are lame and impotent in accounting for her conduct on the theory of her innocence. Her explanations utterly fail to satisfactorily explain her relations with Gauthier or to exculpate her from the only rational interpretation to which her actions are susceptible, viz.: adultery oft and continually repeated with Gauthier.\nHer attitude of hostility to her husband, her frequently telling him she did not care for him, her refusal to abstain from consorting with Gauthier, her manifest preference for Gauthier, both by word and action, repel all her protestations of innocence. Her possession of many photographs of Gauthier, the padlock containing his convention badges and marked with the motto, \u201cLove laughs at locks,\u201d are incriminating circumstances of the most convincing character. The locket with Gauthier\u2019s picture, engraved with the initials of their names, is, with the record of their continually consorting together, convincing proof that wifely virtue had been forsaken for illicit love. The intertwining of the initials of those of the opposite sexes on keepsakes has been an emblem of love\u2019s pledge time out of mind. All these acts and tokens of love between Mrs. Hughes and her paramour are harmonized by her admission that in another State, Gauthier, her lover, is an inmate of her home. To believe otherwise, from such a convincing array of facts and circumstances, than that Mrs. Hughes has been guilty of adultery with Gauthier, would strain our credulity to the limit. When Hughes caused the arrest of Gauthier at the \u201cEensu Hotel,\u201d his wife was swift at the earliest opportunity to go to her paramour\u2019s assistance and release him from his prison cell. Her attempt to prove an alibi on this occasion is weak and self-refuting.\nWe search this record in vain for any explicit denial on her part of adultery with Gauthier, and if she is innocent why did she not produce Gauthier as a witness to repel her husband\u2019s attacks upon her virtue ? The conclusion is irresistible from all the evidence that she has dishonored her wifehood and that Gauthier is her guilty paramour. What did she mean when she said in the letter she left on her departure, \u201cI am going away. I may be doing a foolish or wicked thing\u201d ? What was the foolish or wicked thing she had in mind, if not her past and her contemplated future adulteries with Gauthier? Paraphrasing the words of the Supreme Court in Stiles v. Stiles, supra: Her innocence was assailed, but Gauthier sat silent at the trial under the imputation and suffered her to bear the burden of explaining the occurrences as best she could.\nWe are satisfied that the verdict finding Mrs. Hughes not guilty of the adultery charged against her in the original bill is so manifestly against the weight of the evidence that it is our duty to reverse the decree of the trial court. Belden v. Innis, 84 Ill., 78.\nThere is a strong suspicion arising from the evidence in this record that the verdict of the jury was influenced by passion and prejudice. Lowenthal v. Strong, 90 Ill., 74.\nEven where the evidence is conflicting on vital points, and the verdict depends upon the credibility of the witnesses, and consequently the finding of the jury is entitled to great weight in the reviewing court, still, if such reviewing court is not, upon careful consideration, satisfied with the conclusion reached by the jury, a new trial will be awarded. Hayward v. People, 96 Ill., 492.\nWe do not regard the evidence on the vital points in the case at bar, in support of the charges of adultery against Mrs. Hughes, as being in conflict.\nThe remarks of the court complained about are not subject to the objection made. The court had to rule on the objection. The ruling might have been \u25a0 couched more adroitly, but we are unable to say that the court\u2019s language had any misleading effect upon the jury. It certainly was not material to the issues what price the husband paid for the sea] skin sacque and the diamonds he bought his wife. Mo cruelty could be well assigned on his failure to buy either, no matter how much she might importune him to supply them to her.\nIn this case it was of the essence of a fair trial that the jury be instructed accurately upon the law, so that they might not be misled in its proper application to the facts in evidence. There are several instances where the instructions were inaccurate and harmful.\nThe fourth instruction inferentially calls undue attention to the witness Gibson, who traveled from Mason City, Iowa, to Chicago, to attend court as a necessary witness, which his evidence ultimately showed him to be. He was entitled to his reasonable expenses in coming and returning, and for the time he necessarily sojourned here. This instruction told the jury that the fact of a witness being paid for attending court was a circumstance to be taken into account in judging of his credibility. This was error, in omitting a qualifying phrase telling the jury that payment should be limited to a reasonable compensatory charge for a non-resident witness. All witnesses are entitled to fees under our statutes. The instruction was faulty in giving undue prominence to the witness Gibson, as in the state of the evidence it could only be understood as referring to him. It is amenable to the criticism made in Donoghue v. Egan, 85 Ill. App., 20.\nWe think the fifth instruction without warrant of law, in that it tended to direct the jury\u2019s attention to an immaterial matter, viz.: the animus of the husband in bringing the suit as seeking a property advantage or the possession of his children, both of which would be controlled by the decision on the charge of adultery. Animus was not a factor to the finding of the jury, and had no effect whatever upon the real question of whether or not the wife was an adulteress.\nThe sixth instruction was equally erroneous, and squarely falls within the condemnation of Chicago City Ry. Co. v. Allen, 169 Ill., 286, and C. & S. L. R. R. v. Kline, 220 Ill., 334. The court say in Chicago City Ry. Co. v. Allen, supra: \u201cIt is not the law the entire testimony of a witness may be rejected from consideration by the jury upon the ground the witness had wilfully exaggerated any fact or circumstance, hut only when he has wilfully and knowingly sworn falsely to some matter or thing material in its character. 29 Am. & Eng. Ency. of Law, p. 780, and citations in note 1.\u201d The court said in C. & St. L. R. R. Co. v. Kline, supra, that \u201cthe doctrine falsus in uno, falsus in omnibus, is only applied as a rule of law to a witness who has knowingly or wilfully sworn falsely as to some fact material to the issue.\u201d\nWe think the ninth instruction as applied to the evidence was calculated to mislead the jury, as there is nothing in the evidence justifying an assumption that appellant had either the inclination or opportunity to commit adultery.\nInstruction ten states an abstract proposition of law, which lent neither light nor aid to the jury by which to solve the question, and instruction eleven is grossly misleading in assuming a fact about which there is no evidence, viz.: that Hughes forgave his wife whatever she may have done prior to February 28, 1905, from which fact the law adjudges condonation which would bar Hughes from obtaining a decree of divorce.\nOther errors are assigned and argued, but we- do not deem it necessary to pass upon them in our decision of this appeal.\nFor the errors indicated the decree of divorce and all its orders, awarding the custody of the children to Mrs. Hughes, the payment of alimony, suit money and support of the children, is reversed, and the cause remanded for a new trial conformable to this opinion.\nReversed and remanded.", "type": "majority", "author": "Mr. Justice Holdom" } ], "attorneys": [ "Phelps & Cleland, for appellant.", "Allen G. Mills and Frank C. Cook, for appellee." ], "corrections": "", "head_matter": "Leslie C. Hughes v. Grace B. Hughes.\nGen. No. 13,258.\n1. Adultery\u2014what not defense to charge of. A charge of extreme and repeated cruelty does not constitute a sufficient recriminatory defense to a charge of adultery.\n2. Adultery\u2014what evidence sufficient to establish. Where it appears that the party charged with adultery maintained an attitude hostile to her husband, frequently telling him that she did not care for him, and maintained, against his protest, relations of intimacy with one for whom, by word and conduct, she appeared to entertain an affectionate regard, and was found in places where the opportunity to commit adultery was present, establishes, where accompanied by other facts and circumstances, the charge of adultery made against her.\n3. Verdict\u2014in chancery, when disturbed as against the evidence. Where the verdict of a jury rendered in a chancery cause appears to have been clearly against the weight of the evidence, the same will be set aside.\n4. Instruction\u2014should not single out particular witness. An instruction is erroneous which singles out and calls undue attention to a particular witness.\n5. Instruction\u2014when, upon credibility of witness, erroneous. An instruction is erroneous which permits the jury to disregard the testimony of a witness where he has been guilty of exaggeration.\n6. Instruction\u2014must not assume existence of fact upon which there is no evidence. An instruction is erroneous which assumes the existence of a fact upon which there is no evidence.\n7. Witness\u2014what fees may properly be paid nonresident. A nonresident witness who attends court may properly be paid his reasonable expenses in coming and going and for the time which he necessarily sojourned at the place where the case was tried.\n8. Divorce\u2014when instruction as to animus of husband in bring ing action for, erroneous. An instruction is erroneous which directs the jury\u2019s attention to an immaterial matter, namely, the animus of the husband in bringing the suit as seeking a property advantage or the possession of his children.\nDivorce proceeding. Appeal from the Superior Court of Cook County; the Hon. Willard M. McEwen, Judge, presiding.\nHeard in this court at the October term, 1906.\nReversed and remanded.\nOpinion filed May 13, 1907.\nPhelps & Cleland, for appellant.\nAllen G. Mills and Frank C. Cook, for appellee." }, "file_name": "0654-01", "first_page_order": 672, "last_page_order": 682 }