195 P. 347 | Or. | 1921
The evidence discloses the following facts: The defendant left the plaintiff on June 5, 1919, without
Plaintiff contends that cessation of marital intercourse for the term of one year, coupled with the intent to abandon the wife, against her will, constitutes desertion, even though they reside under the same roof. This presents the sole question for our consideration upon this appeal.
There is a conflict of opinion in the authorities upon this subject, the appellate courts of a considerable number of states following the rule of the early ecclesiastical courts which, while requiring the offending party to return and live with the plaintiff, never undertook to compel the granting of sexual intercourse. The states which follow this rule have held that a will
“Nothing injurious to the health can be required of either party in marriage. But if from no consideration of health, and from no other good reason, either the husband or the wife permanently, totally, and irrevocably puts an end to what is lawful in marriage and unlawful in every other relation, to what distinguishes marriage from every other relation, this by the better opinion constitutes matrimonial desertion, though the deserting party consents still to live in the same house with the other in the capacity of servant, of master, of brother, of sister, of child, or of friend, either for pay or as a gratuity”: 1 Bishop on Marriage, Divorce, and Separation, § 1676.
The doctrine thus stated has been adopted by a number of states, including the following: Fleegle v. Fleegle (Md.), (110 Atl. 889); Parmly v. Parmly, 90 N. J. Eq. 490 (106 Atl. 456); Axton v. Axton, 182 Ky. 286 (206 S. W. 480); Rie v. Rie, 34 Ark. 37; Graves v. Graves, 88 Miss. 677 (41 South. 384); Whitfield v. Whitfield, 89 Ga. 471 (15 S. E. 543); Stein v. Stein, 5 Colo. 55. Our own court has definitely adopted the rule enunciated by Bishop, as above quoted, in the case of Sisemore v. Sisemore, 17 Or. 542 (21 Pac. 820).
Reversed. Decree Entered.