Bowers v. Bowers

194 P. 697 | Or. | 1921

BURNETT, C. J.

1. The issues involved in this suit are almost exclusively those of fact. The testimony reported has been carefully perused and examined. A detailed analysis of it would not add anything to the snm of legal knowledge garnered in the official reports. It is enough to say, on that subject, that the plaintiff has failed to make out her case by a preponderance of the evidence. Aside from the charge relating to the loathsome disease, the grievances enumerated in the complaint are in the main trivial and do not amount to personal indignities rendering life burdensome, within the meaning of the statute. Indeed, there is no direct proof that the occurrences such as neglect of the premises, failure to supply literature, complaint of the expense of dinner parties, and the like, impaired the plaintiff’s health or threatened her with bodily harm. As said by Mr. Justice Haskell in Holyoke v. Holyoke, 78 Me. 404 (6 Atl. 827):

“Divorce should not be a panacea for the infelicities of married life; if disappointment, suffering, and sorrow even be incident to that relation, they must be endured. The marriage yoke, by mutual forbearance, must be worn, even though it rides unevenly, and has become burdensome withal. Public policy requires that it should be so. Eemove the allurements of divorce at pleasure, and husbands and wives will the more zealously strive to even the burdens and vexations of life, and soften by mutual accommodation so as to enjoy their marriage relation.

“Deplorable as it is, from the infirmities of human nature, cases occur where a willful disregard of marital duty, by act or word, either works, or threatens injury, so serious, that a continuance of cohabitation in marriage cannot be permitted with safety to the personal welfare and health of the injured party. Both a sound body and a sound mind are required to constitute health. Whatever treatment is proved in each particular case to seriously impair, or to seriously threaten to impair, either, is like a withering blast, and endangers ‘life, limb, or health,’ and constitutes the sixth- cause for divorce in the act of 1883. Such is the weight of authority” — citing precedents.

2, 3. Annulment of the marriage relation is not to be granted under our statute for mere incompatibility of temper or uncongenial disposition. The conduct of the offending spouse must be such as to threaten personal or mental injury to the one complaining, rendering it unsafe for the latter if the marriage relation is continued, before a court is authorized to grant a divorce. Upon reading the record with care, there can be no reasonable ground for granting a divorce on the allegations outside of those relating to the malady mentioned in the complaint. The implied charges of adultery, based as they are on a statement of information and belief, are of doubtful efficacy as a matter of pleading; but evidence wholly fails to establish anything in support of such charges. An allegation of the kind must be supported by more than mere innuendo or suspicion. In order to grant relief upon such a charge, it must be proved as laid.

4. The contest was wag’ed chiefly on the subject of the loathsome disease. The complaint does not charge that the defendant communicated it to the plaintiff, but rather that through the process of conception and gestation it was visited congenitally upon the son that was born to the parties. There is an irreconcilable conflict in the evidence. As usual, the experts do not agree in many respects. The plaintiff testifies to certain eruptions on the person of the defendant, which he absolutely denies. The testimony of the medical men seems to be without dispute that the sores she describes, if attributable to the disease in question, would leave scars; and all of the physicians who have examined the defendant declare there are no such marts on his person. Even the medical witnesses for the plaintiff locate the disease in the throat of defendant and denominate it ‘ ‘ syphilitic sore throat. ’ ’ Other physicians who treated the defendant at the time pronounced .it diphtheria. All agree that the disease charged is acquired only by contact, that it starts at the point of contact, and that it may be acquired innocently through various media. This would seem to indicate that, even if the defendant had syphilis, he did not contract it adulterously. It would be disgusting to analyze the testimony in detail, as in an address to a jury on a question of fact, and hence the subject will not be pursued further.

The learned judge who heard the testimony had before him the principal witnesses in the case. His long experience as a jurist and his opportunity to observe the manner of witnesses while testifying are of great aid in arriving at the conclusions of fact which we deduce from a reading of the record, and we adopt his determination of the matter.

The decree is affirmed. Affirmed.

McBride, Bean and Harris, JJ., concur.