This is an appeal from a decree of divorce granted to respondent in a suit wherein the cause of action stated is extreme cruelty, which is defined by sec. 2649, Rev. Codes, as “the infliction of grievous bodily injury or grievous mental suffеring upon the other by one party to the marriage.”
In order to sustain the allegations of her complaint, respondent called appellant as her first witness, and required him to testify under the provisions of an act of the legislature approved March 13, 1909 (Sess. Laws 1909, p. 334), wherein it is provided:
“Sec. 1. A party to the record of any civil action . . . . may be examined by the adverse party as if under cross-*642 examination, subject to the rules applicable to the examination of other witnesses; and the testimony given by such witness may be rebutted by the party calling him for such examination, by other evidence. Such witness when so called, may be examined by his own counsel, but only as to matters testified to on such examination.
“See. 2. Nothing contained in the act shall be construed in such manner as to compel the husband or wife to testify against the other, nor to compel a witness to disclose information or communications which аre privileged by law.”
Appellant insists that it was error for the court to permit respondent to call him as a witness and to compel him to testify in the case against his will, and urges that to do so was to violate the second sectiоn of the act. This contention cannot be sustained. The disqualification of husbands and wives as witnesses is to be found in subd. 1 of sec. 5958; Bev. Codes, and it provides: “A husband cannot be examined for or against his wife, without her consent, nor a wife for оr against her husband, without his consent; nor can either, during the marriage or afterward, be, without the consent of the other, examined as to any communication made by one to the other during the marriage; but this exception does not apрly to a civil action or proceeding by one against the other nor to a criminal action or proceeding for a crime committed by violence of one against the person of the other.”
Clearly the wife сonsented in this case that her husband testify. He was produced by her as a witness in an effort to sustain, in part, the allegations of her complaint, and by permitting him to be so produced neither the provisions of sec. 2 of the act of 1909, nor of subd. 1 of see. 5958, supra, were violated.
"While it is entirely clear to our minds that a husband or wife may be called as a witness for the other" in an action" for divorce under the provisions of "the act of 1909, supra, it is equally clear that those provisions are intended to extend to a party to a civil action the right to examine his adversary without being bound by the testimony thereby adduced, and
We had occasion to say in the case of Darry v. Cox,
“Under the general rule, prior to the adoption of this act, a party calling such a witness as therein referred to was bound by his tеstimony. This law modifies that rule and permits such testimony to be rebutted. It is suggested that the purpose of the act is abused, and that a plaintiff may call the defendant as a witness thereunder and inquire into the entire defense, not confining himself to facts which cannot be otherwise readily shown. Trial courts have the same discretion to limit an examination of this kind that they have of cross-examination, generally, and should exercise that discretion to the end that the purрose of the law be not abused. ’ ’
The examination of the defendant in this ease occupies ninety-four typewritten pages, and covers, in scope, almost the entire controversy between the parties. While the act of the legislature under consideration does not so state, expressly, it is not to be construed to mean that the order of proof may be reversed in civil actions and the contention of the party holding the negative of the issue of fact be first inquired into. As heretofore indicated, the privilege granted by the statute was abused in this case, and it was the duty of the trial judge, at the conclusion of the examination of the witness, to sustain a motion, which was mаde by his counsel, that his evidence be stricken from the record. It is but fair to the learned trial judge to note that this case was tried in the district court prior to the announcement of the rule stated in Darry v. Cox, supra, which appears to be the first рronouncement by this court upon that subject.
“Q. Do you know what her reputation is, or was at the time you knew her, for truthfulness?”
To this question an objection was. interposed that it was incompetent, irrelevant and immaterial, which objection was insisted upon and was overruled at the time the deposition was read.
“A. Yes, sir.
“Q. In the community in which she lives?
“A. Yes, sir.
“Q. What is her reputation?
“A. Untruthfulness, as near as I can make out. What do you mean by reputation, — her good repute ?
“Q. That’s it; her reputation as to whether she tells the truth.
“A. She has the reputation of being a story-teller among her schoolmates.”
According to the certificate of the officer before whom the deposition was taken, this examination was had on February 28, 1914. The purpose of this part of it was clearly to discredit and impeach Hazel Boeck, who wаs not produced as a witness until during the trial of the case, which commenced on July 13th of that year, several months after the deposition was taken. We are not familiar with any rule whereby the credibility of a person may be impeached in anticipation that some time he may become a witness, and in the absence of such a rule these questions touching the reputation of Hazel Boeck for truthfulness, at the time they were propounded to
Appellant’s principal contention presented by this appeal is that the evidence is insufficient to sustain the findings of fact and to establish extreme cruelty as defined by sec. 2649, supra.
Respondent, in her complaint, charges appellant with seventy-one different acts of cruelty, many of which, however, are not sustained by the proof, many more are trivial matters, and but few are sufficiently serious, even unexplained, to constitute extreme cruelty.
The oral and documentary evidence introduced in this case consists of more than 1,300 pages of typewritten matter, largely devoted to unimportant disagreements, misunderstandings and acts of the parties which have little оr no probative force and with a discussion of which we do not propose to encumber the reports. Out of this mass, however, may be gleaned a few facts so conclusively established as to leave no room for сontroversy. These are that plaintiff and defendant were married in the year 1901; that they are both physicians and successfully practiced their profession together until 1910, when respondent’s health failed and when, with the consent аnd at the solicitation of appellant, she went to California to procure needed rest; that up to the time of her departure their married life had been remarkably harmonious and free from any cause or desirе for separation on the part of either of them; that she remained in California
Divorce is a remedy for the relief of an injured spouse who has not been the voluntary, procuring cause of the acts relied upon to invoke it, and it is not available for one who, disregarding the solemnity of the nuptial vows, prompts the other party to the marriage to conduct which would be inexcusable if committed against a husband or wife who was honestly endeavoring to sustain the marriage relation. •
In Spofford v. Spofford,
A careful examination of the entire record convinces us that respondent was the procuring cause of the commission of almost all the acts established by the evidence against appellant which are sufficiently serious to be worthy of con
_ The decree of divorce heretofore granted is reversed, with direction that the cause be dismissed.
The parties have community property from which costs may be paid, and no judgment will be awarded therefor.