30 Kan. 712 | Kan. | 1883
This was an action brought by John C. Carpenter against Eliza D. Carpenter, his wife, in the district court of Neosho county, Kansas, to obtain a divorce on the ground of “extreme cruelty.” The case was tried by the court without a jury, and the court found in favor of the plaintiff and against the defendant, and granted the divorce prayed for. The judgment was rendered April 16, 1883. To obtain a reversal of this judgment, the defendant, as plaintiff in error, now brings the case to this court. The first alleged ground for reversal is, that the district court had no jurisdiction of the subject-matter of the action; and this contention is predicated upon the provisions of §§ 54 and 640 of the civil code. The substance of these sections is, that the action for divorce is a local action, and can be brought only in the county of which the plaintiff is “a resident” or “an actual resident” at the time of filing the petition. The facts with reference to this subject, as found by the court below, are as follows:
“ 2. That plaintiff is a lawyer by profession; has heretofore, but not since the — day of March, 1878, been engaged in the practice thereof; that at or about that time he was appointed to and accepted the office of internal revenue collector of the United States for the district of Kansas; that at the time of such appointment he was practicing law, had his library, office, sleeping apartments, and washing done in Neosho county, Kansas; that he was the owner and in possession of both real and personal property located in the city of Chanute, in said county, which city was, at the time of his said appointment, within the geographical limits of Neosho county; that the plaintiff has ever since his said appointment voted in the county of Neosho, and at no other place; that he has claimed Neosho county as his residence for more than ten years last past, and now claims said county as his residence, and that he intended to return to said city of Chanute, in said county, where his professional library and office have for years last past been, just as soon as his official term of office should expire, and again resume the practice of the law; that the principal office to which plaintiff was appointed, and which he*715 accepted in 1878, is kept and maintained in the city and county of Leavenworth, in said state, by order of the government of the United States; that the same .has been kept and maintained in said city and county of Leavenworth by reason of such order; that the plaintiff in the discharge of his official duties has been compelled to spend his time chiefly in said city of Leavenworth; that at the time of the commencement of this action he was occupying private sleeping apartments in said city of Leavenworth, and when not engaged in official or other business at other places, he boarded at some public house in said city; that the internal revenue district of the United States for the state of Kansas for which the plaintiff was appointed collector, comprises the whole state of Kansas.”
From the foregoing facts the court deduced the following conclusion of law:
“2, That plaintiff for more than one year next preceding the filing of his petition herein ’was, and now is, a resident of the county of Neosho, and the state of Kansas.”
The court also found that for more than sixteen years last past the plaintiff has been an actual resident in good faith of the state of Kansas.
Said sections 54 and 640 read as follows:
“Sec. 54. An action for a divorce may be brought in the county of which the plaintiff is an actual resident at the time of filing the petition.”
“Sec. 640. The plaintiff in an action for divorce must have been an actual resident, in good faith, of the state for one year next preceding the filing of the petition, and a resident of the county in which the action is brought at the time the petition is filed.”
We think the foregoing facts, as found by the court below, are sustained by the evidence. There are also one or two other facts which we might state in this-connection: About November 1, 1882, the plaintiff, Carpenter, rented a furnished house in the city of Leavenworth, and from November 9, 1882, up to December 29, 1882, he, with his wife, and one or more servants, resided in such house and kept house. But his law library, with some other property, has all the time remained at Chanute.
Assuming that the plaintiff in error is correct upon this proposition, but not intending to express any opinion thereon, we must say that we think that the decision of the court below upon the question of jurisdiction was, nevertheless, correct. Mr. Carpenter’s permanent and actual residence was in Neosho county, while his temporary and transient residence was in Leavenworth county. He was simply a sojourner in the city of Leavenworth during the continuance of his term of office; and he never intended or expected to make that place his permanent home, but always intended and expected to return to Chanute, in Neosho county, when his term of office expired; and always intended and expected to continue to make that place his permanent home, his permanent abiding-place; and his wife, the defendant below, understood this as well as he did, for in her letter to him, written January 11, 1883, after their separation, she says:
“My position in P-[Pittsburgh, Pa.] as the daughter of-C. H. Armstrong, in a large city, and among my old friends, was better than on a salary, in a government office, in a small town, and the possibility of losing it at any time and settling in Chanute. ... I should have been just as happy in two rooms in Chanute as in forty rooms in Topeka, if you had been kind and affectionate towards me, and showed me you liked to be with me.”
The words “resident” and “actual resident,” as used in the divorce statutes, we think contemplate a residence and actual residence with substantially the same attributes as are intended when the word “domicile” is used. And we do not think that it makes any differeneé that the word “residence” sometimes or in some other statute, may mean something else. It may be that for the purpose of serving a summons, the words “usual place of residence” should be held to mean the place where the defendant is in fact residing for the time being; though, contra, see Love v. Cherry, 24 Iowa, 204. But we do not think that the words “resident” or “actual resident,” as used in the divorce statutes, can have in contemplation any such kind of residence. In the divorce statutes, we think these words have in contemplation a residence of a more permanent and fixed character.
But counsel for plaintiff in error desire to make a distinction between official homes where the offices with which they
The next alleged ground for reversal is, that the court below erred in refusing to submit the case to a jury and in trying the case itself. Now there was certainly no error in this, for under the statutes of Kansas this class of cases must “be tried by the court, subject to its power to order any issue or issues to be tried by a jury, or referred, as provided in the code.” (Civil Code, §§ 265, 266, 267.) And there is nothing in the present case tending to show any abuse of judicial discretion with respect to this matter. The only question that was to be tried in this case was, whether the plaintiff should be granted a divorce or not; he prayed for nothing else. And the defendant prayed for nothing except that “the plaintiff be not divorced from, her.” It is true as claimed by the plaintiff in error, defendant below, that the plaintiff and the judge of the trial court were once practicing lawyers of the
There are several supposed errors, which are alleged to have occurred at the trial of this case, which we hardly think are of sufficient importance to require any consideration:
1. It is claimed that the court below erred in refusing to permit the defendant below to prove why she visited A. G. Carpenter, at Olathe, Kansas. Now this was an immaterial matter. Besides, the court did permit her to prove it, but simply refused to permit her to prove that Mrs. Elizabeth Elliott, a sister of the plaintiff, advised the defendant, while both were in Pennsylvania, and the plaintiff in Kansas, to make such visit.
2. It is claimed that the court below erred in refusing to permit the defendant. below to introduce evidence showing her good character in Pennsylvania. The plaintiff below admittecl that her character and standing in Pennsylvania were good, and that he made no attack upon her character.
3. It is also claimed that the court below erred in refusing to permit the defendant below to show her financial condition. Now there was nothing in the pleadings, nor in any of the other proceedings, that authorized such a showing. She claimed neither alimony nor suit-money, and made no pretense that she was not amply able financially to take care of herself and of her case. - n
4. The plaintiff in error, defendant below, also claims that
5. It is also claimed that the court below erred in excluding the evidence of Maggie Armstrong, a sister of Mrs. Carpenter, as to what Mrs. Carpenter told her mother on her return to Pittsburgh, Pennsylvania; or, rather, what she did not tell her mother at such time and place. Her husband, the plaintiff below, was then in Kansas.
6. It is also claimed that the court below erred in refusing to compel. the plaintiff below to produce a certain diary written by his wife, and two certain letters written by her from Pittsburgh, Pennsylvania, to him at Leavenworth, Kansas, after their separation. This diary and these letters were afterward introduced in evidence by the parties.
7. It is also claimed that the court below erred in refusing to make certain special findings. The defendant below, by her counsel, presented to the court twenty-two different questions which she asked the court to answer; but the court below refused to answer any of them in the form in which they were presented to it, but made special findings of its own, as hereinafter set forth. We think that the court below made all the special findings that the pleadings and the evidence called for, or that Were necessary in the case; and the court answered in substance all the questions of any materiality presented to it by the defendant. At the present time the plaintiff in error, defendant below, does not insist that the court below erred with respect to any of these questions, except with respect to two of them, as follows: First, When did the plaintiff below first form and express his determination to separate from his wife? Second, What was the purpose and the object of the defendant below in sending the anonymous letters hereafter mentioned ? We think these matters were sufficiently found in the more general findings of the court; but we shall have more to say with respect to them hereafter.
The findings of the court below are as follows:
“1. That plaintiff and defendant were married in the city of Pittsburgh, in the state of Pennsylvania, on the 2d day of March, 1882.
“2. [The second finding has already been given.]
“3. That the .plaintiff conducted himself toward the defendant as a kind, faithful and affectionate husband from their marriage until their separation.
“4. That during the month of December, 1882, the defendant made, composed and sent through the post office of said city of Leavenworth certain anonymous communications concerning her husband, the plaintiff, accusing and charging him with being guilty of adultery and other wrongs with the wife of one of the employés of his office; that for the purpose of having it made publicly to be believed that the plaintiff was guilty of such crimes and wrongs, sent one of such communications, for the purpose of publication therein, to each of two leading newspapers, viz., the Leavenworth Daily Standard, and the Leavenworth Daily Times; that two of such communications were sent to the said employé, in said office of plaintiff, and that one addressed to herself, the defendant, was sent to plaintiff’s office, and there intercepted by him.
“5. That defendant knew that the charges made in said communications were wholly false, untrue, and without foundation ; that she did not believe said charges to be true, and had no reason to so believe; that the said communications were made, composed and sent for the purpose, among others, of destroying the friendship which had for a long time existed between the plaintiff and the family of said employé, caused by numerous acts of kindness by the latter toward the former during a severe illness, and which was brought to the knowledge of defendant before marriage with plaintiff, and that there had been no illicit or criminal intercourse between the said plaintiff and the wife of said employé.
“6. That on account of the acts of the said defendant, and the publicity given thereto by her own conduct, the plaintiff became broken and severely injured in health, depressed in spirits, and sorely troubled and injured in mind and body.
“ 7. That the plaintiff, becoming satisfied that the defendant was the author of the anonymous communications referred to*722 in the fourth finding of facts herein, did, on the 27th day of December, 1882, accuse the defendant of composing and sending the same, and thereupon it was mutually agreed between plaintiff and defendant to separate, that they could not live together any longer, and plaintiff and defendant then and there agreed upon a settlement and division of all property between them, and settled such matter, the defendant executing deeds to plaintiff’s real estate, and the plaintiff executing a power of attorney for the defendant, thereby enabling defendant to control her own property; and afterward, and on the 29th day of December, 1882, the defendant left Leavenworth, Kansas, for Pittsburgh, Pennsylvania, and the plaintiff and the defendant have not lived together as husband and wife since said 27th day of December, 1882.
“8. That by reason of the conduct of the defendant, as hereinbefore found, the affections of the parties have become alienated, their happiness destroyed, and the legitimate ends of matrimony have not and cannot be reached and realized.
“9. That all and singular the several matters and things in the plaintiff’s petition averred of and concerning the defendant are and were at the commencement of this suit true.”
As conclusions of law the court found:
“1. That for more than sixteen years last past plaintiff has been an actual resident, in good faith, in the state of Kansas.
“ 2. That plaintiff for more than one year next preceding the filing of his petition herein was, and now is, a resident of the county of Neosho and the state of Kansas.
“3. That plaintiff is entitled toa divorce from the defendant on account of her faults and aggressions, in that the defendant was guilty of extreme cruelty toward the plaintiff, as alleged in his petition.”
We think the findings of fact as made by the court below are not only sustained by sufficient evidence to preclude their being set aside in this court, (Gibbs v. Gibbs, 18 Kas. 419,) but they are sustained by an unquestionable preponderance of the evidence. We think there was abundant evidence to prove “that plaintiff [below] conducted himself toward the defendant as a kind, faithful and affectionate husband, from their marriage until their separation; ” and that the plaintiff below did not form any intention to separate from his wife until after he had good reason to believe that she was the author
The defendant herself, while testifying as a witness on the trial, admitted that she did not believe that-the defendant was ever guilty of adultery with Mrs. Mitchell; and she also admitted that she “did not believe that he was guilty of criminal intimacy with anyone.” She testified on the trial, among other things, as follows: .
“Q. You said on several occasions that you did not believe that Col. Carpenter ever had any criminal intercourse with Mrs. Mitchell? A. I did.
“ Q,. At the time that you filed that answer did you believe that Col. Carpenter ever did have any criminal intimacy with Mrs. Mitchell? A. No, sir; I did not.”
She. also testified, among other things, as follows:
“Q,, State whether anything unpleasant occurred between*724 you and your husband while you were boarding with the Mitchells. A. Nothing of an unpleasant character occurred between my husband and me while I boarded at the Mitchell house.
“Q,. I understand you to say that during the time you lived there, you and your husband, with the Mitchellsj you had no quarrel or difficulty with him? A. I had no quarrel, that I could call a quarrel, with Col. Carpenter.
“Q,. Up to the time that .you went to Colorado [they left Leavenworth for Colorado on July 15, 1882], he always treated you with respect? A. Yes, sir.
“Q,. And you did him the same? A. I tried to.
“Q,. Up to the time that you went to Colorado, you did not know of any fault in Col. Carpenter; and in Colorado you had another interview in which the Mitchells were questioned? A. Yes, sir.
“Q,. Up to that time [t]he time when they returned from Colorado, in August, 1882], you have no serious charges against Col. Carpenter? A. I never did have any.
“Q,. Did you see this answer that is in this case? A. Yes, sir.
“Q,. You swore to it? A. Yes, sir.
“Q,. You never had any serious charges against him, you say? A. No, sir.”
Shortly after their return from Colorado, which was in August, 1882, Mrs. Carpenter returned to her former home in Pittsburgh, Pa. This was about August 26, 1882. From the testimony of Col. Carpenter and the letters received by him from her during her stay in Pittsburgh, Pa., this visit of hers was satisfactory to both parties. She went to Pennsylvania partly because it was unsatisfactory to her to remain longer at Mr. Mitchell’s house, partly because her mother was sick, and partly because she was herself diseased, and went to Pennsylvania for the purpose of medical treatment. In her letter to Col. Carpenter of September 1,1882, she says, among other things:
“It almost repaid me for coming, to see how pleased mother was at my being home once again. . . . I found mother much better than I expected. Maggie says she began to be so from Saturday evening. . . . Mother thinks you are very good to let me come home at this time, and told me to*725 be sure and let you'linow that they all appreciate your kindness; and I know they hope to merit your respect.”
In her letter of October 4, 1882, she says, among other things:
“Your letter Monday has done me lots of good. . . . Let me know what you think about my remaining longer, as I told you in my letter.”
In her letter of October 17, 1882, she says, among other things:
“I do not see the necessity for you being here. For some reasons Dr. S.' would rather not have you at present, and told me some things that I am to tell you when I see you. . . . As for your coming to meet me, I do not think the expense, etc., is necessary, as you will be busy enough getting the house in order. . . . Should the doctor desire me to remain longer, I shall of course let you know at once; but I think it will be unnecessary.”
In her letter of-October 21, 1882, 'she says, among other things:
“Your kind letter this morning makes me better prepared to endure it, [a surgical operation,] as you speak so encouragingly about our being together again. . . . However, I can better tell by October 29, when the final one [surgical operation ] will positively be. . . . Unless you get a pass and really desire to come to Chicago, I do not see the necessity of your doing so, as much as I should like to see you. . . . I would rather you would look after the house, [a house that Colonel Carpenter had recently rented for them to live in,] getting everything moved out of your present quarters, [the Mitchell house,] and having the home we are to occupy this winter in readiness. However, I leave it in your hands; only do not think you are obliged to come, as I know you are. perfectly willing to do so if necessary.”
The letters of Colonel Carpenter to his wife, during the time that she was in Pennsylvania, she did not see fit to introduce in evidence, and they were not introduced in evidence, and consequently we do not know what their contents were, further than what her letters to him would indicate.
On November 7, 1882, she left Pittsburgh, and arrived at
“Question: That was a furnished house? Answer: Yes, sir; it was furnished, and a very pleasant, large and roomy house.
“Q,. That was a large and commodious house? A. Yes, sir.
“Q,. It was fitted up in every respect? A. It was, with thé exception of bed linen and table linen and dishes.
“Q,. There was a superabundance of every kind of furniture there? A. It was sufficient.
“Q. You did not find any fault with Colonel Carpenter on account of failing to furnish anything? A. I did not.
“Q. You have stated that the house was fitted up with a superabundance of furniture? A. Yes, sir.
“Q,. And he furnished everything that was necessary? A. Yes, sir.
“Q. Are those charges here in the answer [the defendant’s answer to the plaintiff’s petition] also correct? A. I did not say that.
“Q,. It was well fitted up with costly furniture, and you brought your furniture there and commenced housekeeping? A. Yes, sir, he did.
“Q,. Was there anything that ought to have been purchased there that was not purchased? A. No, sir; I don’t think there was.
“Q,. Lid you ever ask him to buy anything that he refused to buy? A. No, sir.
“ Q. Can you state anything more that he could have done to make that McKay house comfortable and fit it up for a house? A. I had nothing to complain of.”
On the next Sunday after her return to Leavenworth, which was November 12, 1882, the plaintiff and defendant went tochurch together, and at the door of the church they .met a little girl eight or ten years old, named “Ada Mitchell,” who was the daughter of Mr.-and Mrs. Mitchell, the persons with whom Col. Carpenter had made his home for several years,
From about the last of November up to about the 19th of December, 1882, Mrs. Carpenter, according to her own testimony, received three anonymous letters; but it does not appear that anyone ever saw any of these letters except Mr. H. Feagan and herself, and Mr. Feagan saw only one of them. Mr. Feagan was Col. Carpenter’s chief clerk in the revenue office. These letters were all derogatory to the character of Col. Carpenter. One of them she copied in the diary of December 13. On December 9, 1882, Col. Carpenter received an anonymous letter addressed to his wife; and
It is now claimed by the plaintiff in error, defendant below, that Col. Carpenter formed the intention of dissolving the marriage relation existing between himself and wife prior to the reception or any knowledge of these anonymous letters; and really the only ground upon which she bases this claim is the testimony of Mrs. Anna R. Ridenour. Mrs. Ridenour at first stated in her testimony that Col. Carpenter at one time stated to her that he and his wife would have to separate; and then the following evidence was given by Mrs. Ridenour:
“Q,. When did he say they would have to separate? A. I don’t remember the time, but it does not seem a great while before they did separate.
“Q. Was it previous to December last? A. Yes, sir.
“Q,. Was it previous to the time that Mrs. Carpenter returned from Pittsburgh and they went to housekeeping? A. Yes, sir, it was previous.”
Afterward she appeared and corrected this testimony, by saying that the conversation between herself and Col. Carpenter, instead of being before December, was before Christ
The next question in the case is whether there was sufficient evidence to prove that Mrs. Carpenter was the author of these anonymous letters. Mrs. Carpenter hated the entire Mitchell family, and she hated Mrs. Mitchell with a hatred scarcely conceivable. She believed that the Mitchells were attempting to alienate the affections of her husband from herself; and she was therefore cruel and relentless in her hatred toward them. In her diary of Sunday, November 12, she uses the following language:
“Sunday. — My God, what a day have I put in! Insulted, vilified, scolded, raved at, called a liar and a hypocrite by the man who only eight short months ago swore to love, honor and cherish me. Can such things be, and I' yet live ? Father, is not suicide excusable under such circumstances? What would my mother, sister and brother think of the man whom they honor and love as the husband of their sister? And yet I cannot hate him. I think he is under the influence of those Mitchells — is so wrapped up in them he cannot be just or true to anyone who does not glorify them as he does. I would I had never married him, if this is to be the upshot of my ideal life with him. How long will it last? How will it end ? Dear Saviour, guide and direct me through these most trying hours of our lives. Had I been the vilest, lowest outcast, I could not have been slandered worse; and yet my husband talks of a forgiving spirit, a loving heart. My grief is more than I can bear.”
On December 13, 1882, Mrs. Carpenter wrote the following in her diary:
“A week ago yesterday morning when I went to look for the Journal found a law report for Mr. McKay, and an envelope directed to me, and oh! my God, on opening it I „found an anonymous letter telling me that my husband was false to me, and directed to Ottawa' street, between Second and Third. It was: ‘Mrs. Carpenter, is your husband the*731 official who has his lover’s husband in ¿his office and who is to be written up in the Leavenworth TimesV What an agony I endured! I was nearly frantic, and concluded to wait further developments. Mr. Feagan was here on Friday and said that woman was in the office that afternoon, she could leave her sick husband and go down to see mine, but he was at home, fortunately.”
Mrs. Carpenter, according to her testimony and as before stated, received three anonymous letters, with respect to which we shall have more to say hereafter.
On December 10, 1882, Col. Óarpenter received at his office, and through the Leavenworth post office, a letter mailed December 9th, and addressed to “ Mrs. Col. J. C. Carpenter, Leavenworth, Kansas.” This address was made up of letters cut from some printed paper, and pasted on the envelope. On account of the peculiarity of the address, Col. Carpenter opened the-letter. It reads as follows:
“ Mes. Carpenter : Is it your husband I hear is the official who has his lover’s husband.in his office, and that the Leavenworth Times is to write up? He; would have wrote Col. John in his correct color not long since, only he got married, and that hindered it. Keep .your eyes and ears open, and your attention will be paid for your time. . I will write you again.”
This letter he put away in his safe and said nothing about it. On December 12, Col. Carpenter received at his office another letter which came through the Leavenworth post office, addressed to “J. N. Mitchell, Leavenworth, Kansas.” The address on this letter was made up in the same manner as the one addressed to Mrs. Carpenter; and Mitchéll not being in the office at the time, Carpenter opened it. It reads as follows:
“Are you the man who is working for your wife’s paramour, and it will be in the Leavenworth Times”
Col. Carpenter put this letter away with the other. About December 19, 1882, anonymous letters of the same character were received by the editors of the Leavenworth Daily Stand
“Editor Standard: Who is the official who has his woman’s husband in his office for years? Does his wife, a highly accomplished lady, know of his weak, foolish admiration? More again.”
The letter to the editor of the Daily Times was destroyed and no copy of the same was kept. On December 21, 1882, Mr. Mitchell received another anonymous letter addressed to himself, which letter he handed to Col. Carpenter and Carpenter placed it along with the others. The letter reads as follows:
“How does your old woman get along without Carpenter to ride her now? Are they at their old bed-ridden actions without your knowing it?”
All these letters, those addressed to Mrs. Carpenter, those addressed to Mr. Mitchell, and those addressed to the editors of the Leavenworth Daily Times and the Leavenworth Daily Standard, were made up of words and letters cut from some printed paper and pasted on a piece of white paper; and the addresses were all made up in the same way. The original letters above quoted were introduced in evidence on the trial. Jennie Gwinn, who was a servant girl at the house of Col. Carpenter and his wife, testified that she at one time mailed a letter for Mrs. Carpenter that had printed letters cut from some paper pasted on the envelope. That letter, however, which Jennie Gwinn mailed was in all probability not one of these anonymous letters.
The last anonymous letter which Mrs. Carpenter received, and which Mr. H. Eeagan, the chief clerk in Col. Carpenter’s office, read on December 20, 1882, was received on that day, or the day before. This letter was with reference to Col. Carpenter and Mrs. Mitchell, and was in substance very much like the second letter addressed to Mr. Mitchell, though it contained more than that letter. It contained the word “ride,” or “riding,” the same as that did. Mrs. Carpenter
Question: That letter referred to some official, which you understood referred to your husband? ' Answer: I cannot tell you how it was worded; indeed I cannot, but it was worded something in that way.
Q,. It spoke of your husband? A, Yes, sir.
Q,. It spoke of being written up in the Leavenworth Times? A. Yes, sir.
Q,. And you understood that it was for your husband? A. Yes, sir.
Q,. You knew that if your husband was'written up in the Leavenworth Times, it would defame and injure him. A. Yes, sir.
Q,. And you never said a word to him about it? A. No, sir.
Q. From the latter part of November to the 20th of December, you received one letter at least that informed you that your husband’s reputation was to be attacked in the newspapers, and you never said a word to him? A. Yes, sir.
Q,. You loved him? A. Yes, sir.
Q,. You were interested in his character? A. Yes, sir.
Q,. You knew it would ruin his character? A. Yes, sir.
Q,. While he was standing right upon that abyss, you never said a word about it? A. Because I looked upon anonymous letters as very base.
Q,. Was not that the very best reason why you should hasten to him, and let him know? A. Perhaps it would have been the best for me.
Q. You knew it would ruin him, and yet you kept perfectly still? A. Yes, sir.
Q. You got a second letter, did you? ~ A. Yes, sir; I got a second letter.
Q,. Did that letter refer to your husband’s reputation? A. Not in the papers; it was a very obscene letter, and I burned it right away.
Q,. Was that letter of such a character that you do not desire to give us the contents of it? A. I could not give the contents of it; but it was very obscene indeed.
Q. You thought it was an insult? A. It was a very great one.
Q,. Could you think of anything greater? A. No; unless my husband should do something to me.
Q. And you put it in the fire and burned it? A. Yes, sir.
Q. And never said a word about it? A. No, sir.
Q,. And you got a third letter? A. Yes, sir.
[This third letter is the letter which Mr. Feagan saw and' read.]
Q.. And that was a very obscene letter, too? A. Yes, sir • it was a very obscene one.
Q. At the time that you received this very obscene letter, how well were you acquainted with Mr. Feagan ? A. I knew him very well; he had been at the house sometimes, and I had been at the office sometimes.
Q,. You did not consider him very intimate? A. No, sir.
[Mrs. Carpenter then, in answer to a large number of questions, stated in substance that she construed the word “ride” or “riding” in the letter to mean the same as drive or driving; and that at first she did not think that the letter was so obscene as it in fact was.]
Q. You say your acquaintance with Mr. Feagan was not very extensive? A. No, sir.
Q,. You wouldn’t have shown him that letter if you had known the nature of that obscene language? A. I never would have shown any man, not even my own brother, if I had known it.
Q. When you sent for Feagan you didn’t have the letter? A. I did not when I wrote for him to come; and when the girl went out of the door I had lit the grate in the back part of the house, and she handed me the letter.
Q,. Just think about it now. Didn’t you think it was very strange that you sent for Mr. Feagan? A. I did not think it was strange; but I think it was only too bad that I did not tell my husband about it.
Q,. Feagan came up there, and you told him that you were having difficulties? A. I told him about this letter, and that there was something wrong about Colonel; and I wanted to know if I had better tell him about those letters; and if Colonel got any. I said: “I wonder if Colonel got any up at the office?” And he said he didn’t know; and I said: “Mr. Feagan, ought I to tell Colonel about these letters?” And he said —
Q,. Now, from their contents you think it was strange that you should tell or exhibit to a stranger what you should have told your husband? A. He was not a stranger. Colonel
Q,. You had relatives there? A. They were not satisfactory to my husband, and I never went there.
Q,. Do you know any more particular person or any more proper person for a wife to go to than her husband? A. I .acknowledge that I made a very great error.
Q,. When Eeagan went away you requested him to give up the note that you had sent down to him? A. Yes, sir; and I requested him to please not tell Colonel anything about it. I bad rather he did not know it then; and he said he thought he had better tell him. I said -if anybody told him I would rather tell him myself; and as he went to leave he said: “Mrs. Carpenter, I would like to help you. I am a friend to Col. Carpenter.” And I said: “No.” I only wanted his advice. I looked upon these documents as most scurrilous and scandalous.
Q. When you sent up for Feagan, you wrote in the note “Please return the note?” A. Yes, sir.
Q,. He had been there to see you, and he should not speak to the Colonel? A. Yes, sir; because I did not want that he tell the Colonel.
Q. You asked if Colonel did not receive any? A. Yes, sir, I did.
Q,. You really wanted to know? A. Yes, sir, I did.
Q,. Did you have any reason to believe that he had received any? A. I didn’t know why anybody should send any of them to me, and not to him.
Q. It would have been a good deal easier to have just asked him, would it not? A. It was a very grave error, and a great mistake.
Q. Didn’t he say “Mrs. Carpenter, I think I ought to tell Colonel that I have been here”? A. I do not 'recollect that he did. 1
Q,. Did you not understand that you had placed Mr. Feagan in a very delicate situation? A.- I think it was a very great mistake.
Q,. Were there any postage stamps on those letters, those anonymous letters — on the envelopes that the anonymous letters came in? A. To me?
Q. Yes? A. There were, all three of them.
Q. Were they all three of them postmarked? A. I don’t know;-1 didn’t observe.
Q. Why did you observe them to be stamped and not post
Q,. And yet you were anxious to know where it came from, and you were at a great loss to know where it came from? A. Yes, sir.
Q. And never looked to see whether they were postmarked or not? A. I never did.
Q,. You were aware at the time that the letters were usually postmarked? A. Yes, sir; they usually were.”
[At one time, and some years before Col. Carpenter and Mrs. Carpenter were married, and while Mrs. Carpenter resided at Pittsburgh, Pa., and Col. Carpenter at Chanute, Kansas, Mrs Carpenter sent several anonymous communications to him. They were first, however, sent by her to friends of hers at different post offices, to be there addressed and mailed to Col. Carpenter. The next two questions have reference to these anonymous comunications sent by Mrs. Carpenter to Col. Carpenter before they were married.]
Q,. When you sent those anonymous letters to Col. Carpenter, did you not send them to other post offices than one? A. It was at the suggestion of the other lady, so as to mystify him.
Q. By all coming from different places? A. Yes, sir.
Q,. You burned up the first two [of those anonymous letters received in November and December, 1882]? A. Yes, sir, and I also burned the third letter.
Q,. What did you burn them for? A. Because I did not want to keep them. The second one I didn’t want in the house for two hours, and I burned it up immediately; it was so obscene.
Q,. Did you keep a copy of them, or anything of that kind ? A. I don’t know; but I think I made mention of the first one in my diary. I do not know that I copied it there though.
Q,. Why did you copy it in your diary and not keep the original? A. Because I did not think anybody would see my diary but myself, and the original might be seen.
Q. Is that the best reason that you have for it? A. That is one reason I had for it.
Q,. If you kept a copy of it in your diary, have you any reason why you burned the original? A. I burned it up and thought I would forget that I ever had received it.
Mrs. Carpenter, in her diary, and on “Sunday, December 2,” (3) 1882, wrote the following, among other things:
“Yesterday Mrs. Fuller called, and stayed about two hours, and opened up her budget of news, and told me that Colonel, my husband, had spent Thanksgiving afternoon up at Mitch■elPs. Oh, my God, how I felt! I wanted to put her out; to run off and leave her — everything to get by myself, and not let anyone see me.”
On “Tuesday, December 18,” (19) 1882, Mrs. Carpenter wrote the following, among other things, in her diary:
“I did make up my mind, if Colonel did not go near the Mitchells, that I would never say a word against them; but he does go. I somehow think he was there yesterday afternoon, as the office was closed when I passed, and I now intend to be as mean and spiteful towards her as I want to be, and let people know I don’t visit her and don’t intend to. I shall call on Mrs. Fuller, just for news, and cultivate her acquaintance just for that purpose — a person I would never visit if we lived in Pittsburgh.”
On Wednesday, December 20,1882, Mrs. Carpenter wrote the following, among other things, in her diary:
“Was out all yesterday afternoon, and got lots of information, but oh, heavens, of what a kind! To think we are the subjects of gossip and wonder all over this town! It is maddening to think of it, and I cannot endure it- much longer. . . . Well, in the mail which she [Jennie Gwinn] brought off the porch, was a paper for McKay, and another horrid anonymous letter.”
It will be remembered that it was also on December 20, 1882, that Mrs. Carpenter sent to Col. Carpenter’s office for Mr. Feagan; and it was also at this time that Mr. Feagan read the third anonymous letter which Mrs. Carpenter said she had received. At the time that Mrs. Carpenter sent for Mr. Feagan, Col. Carpenter was not in his office, nor in Leavenworth, but was at Olathe, Kansas. This was just ten days after Col. Carpenter had received the anonymous letter ad
The theory of counsel for defendant in error, plaintiff below, is, that Mrs. Carpenter was the author of all these anonymous letters, and had sent the same, and, not hearing from the one addressed to herself, nor from the one addressed to J. N. Mitchell, nor from those sent to the editors of the Leavenworth papers, she became exceedingly - anxious, and her anxiety could not be appeased until she sent for Mr. Feagan to ascertain whether either of these letters had been received in Col. Carpenter’s office or not; and knowing that she herself was the author of the letters, was the reason why she twice requested the return of her note sent to Feagan, and the reason why she enjoined such absolute silence and secresy upon the part of Feagan. Mr. Feagan states in his testimony that he told Mrs. Carpenter that he thought he ought to inform Col. Carpenter with reference to this matter, but Mrs, Carpenter requested him not to do so, and he promised that he would not. Mr. Feagan also testified that there was a stamp on the envelope which inclosed the anonymous letter which he read at Col. Carpenter’s house, and that it seemed to have been canceled; but that there was no postmark. He says that the stamp appeared to be a stamp which had previously been used, and that it did not stick well to the envelope.
Colonel Carpenter, in his testimony at the trial, stated, among other things, that on Wednesday evening, December 27, 1882, the following conversation occurred between himself and his wife:
“She said: ‘I want a peaceable separation;’ and I said: ‘All right;’ and we agreed that it should be such. During*739 that evening I said: ‘Lyde, your letters commenced with me anonymous and they closed anonymous;’ and she said: ‘Yes, but the first were a great deal more pleasant than the last;’ and I said: ‘Yes.’”
On the next evening the following conversation occurred between the parties:
“We sat and talked, as I say, over the separation; she asked me the question whether I was going to get a divorce; and in the conversation I said: ‘Lydé, what, in Heaven’s name, what possessed you to send those anonymous letters?’ and she said: ‘I wanted to break the friendship of you and the Mitchells;’ and I said: ‘And you were satisfied to sacrifice my well-being to do that?’ and she made no response to that whatever.”
Col. Carpenter also testified that on February 8 or 9,1883, at the house of his brother, A. G. Carpenter, at Olathe, his wife again in substance admitted that she was the author of said anonymous letters. A portion of his testimony upon that subject is as follows:
“I then took out these communications with the envelopes on them, and said: ‘Do you recognize' this?’ and she said ‘Yes’; then I took them out one at a time and showed them to her, and she said she recognized them.
“Q. What, if anything, did she say as to whether she had told her mother of her sending these letters? A. She said she had told her so.
“ Q,. That she had told her so? A. She'said she had told her of her sending the letters, and their contents.”
Col. Carpenter at the time exhibited to his wife all the anonymous letters above quoted, and read all but one of them to her. A. G. Carpenter and Mrs. A.. ,G. Carpenter were present at the time.
Mr. A. G. Carpenter, brother to Col. Carpenter, testified with reference to this same conversation, among other things, as follows:
“He was sitting close to her, and he put his hand in his inside pocket, and took out a large envelope, and took out of that envelope several letters, and lie then held them up in front of her and says: ‘Lyde, do you recognize these?’ And*740 she said she did. She said she recognized the letters. He then separated them and held them all in one hand; he then separated them, and said: ‘And this, and this, and this?’ He went over two or three letters that way, and probably four, and she said she recognized them.
“Q,. Go on and state all that was said between them? A. I have stated about all that I can recollect ini relation to this matter — and then it passed on to these anonymous communications.
“Q,. Then he pulled them out, and asked her if she could recognize them? A. Yes, sir.”
Mrs. A. G. Carpenter testified with reference to this same conversation, among other things, as follows:
“Q,. Now what was next said or done, if anything, with reference to some anonymous letters? A. About anonymous letters?
“Q,. Yes. A. He put his hand in his side pocket and took out a large envelope, and took from that three or four smaller ones, and held them up to her and said: ‘Lyde, do you recognize this?’ And she said, ‘Yes.’
“Q,. She said, ‘Yes’? A. Yes, sir, and I think he separated them and said like this: ‘And this, and this, and this?’
“Q. What did she say? A. She said, ‘Yes,’ like that.
“Q,. She said ‘Yes,’ to each one them, did she? A. I would not be positive that she said ‘Yes’ to each one of them.
“Q,. Then what next was done with reference to the letters? A. He said: ‘For the enlightenment of the folks here I will read them.’ And he took out two of them and read them; but one he said he would not read.
“Q,. Why did he say that he would not read it? A. He said that it was too obscene to read in my presence.
“Q,. What next was said about those letters just after he had got through reading two of them? A. I think he read another one.
“Q. Well, then, what was said with reference to the letters, if anything? A. He said: ‘Lyde, did you go home and tell your mother the whole story? Did you tell her all the trouble between you and me?’ and she said: ‘Yes.’ He said: ‘Did you tell her about sending these anonymous communications?’ and she said: ‘Yes.’ And he said: ‘Did you tell her the contents?’ and she said: ‘Yes.’ Then he said: ‘Then I say she is'a queer woman to write me the letter she did.’
“Q,. When he took the letters out and showed them to her,*741 he asked her whether she recognized those letters, did he? A. Yes, sir.
“Q. Did he ask her whether she recognized or knew them? A. Did she recognize them.
“Q. Then he read some of them? A.'Yes, sir/
“Q. Then he asked her whether she had told her mother all about these communications? A. Yes, sir; and she said she had told her mother all.
“Q. Did she say she had told her mother that she had sent those letters? A. He asked her if she had told her mother all about sending them, and she said she had.
“Q. Did he use the word ‘sending/ or ‘sent’ ? A. I think it was ‘sending;’ I am not positive, quite.
“Q. Might there not be a mistake about the word ‘sent’? A. I think there was no mistake about it,
“Q. Then lie said if she told her mother all about it? A. Yes, sir, and told her about the contents.
“ Q. Then he thought it very strange that she should write him such a letter as she had? A. ‘Queer’ is the word he used — ‘a very queer woman.’”
Mrs. Carpenter, the defendant below, in her testimony, contradicts the foregoing testimony of Col. Carpenter, of A. G. Carpenter, and of Mrs. A. G. Carpenter. She says she never admitted that she was the author of .the anonymous letters sent and received in November' and December, 1882; and she further says that she was not the author of them and had no knowledge of their existence prior to the time when they were received. Mrs. Carpenter in her testimony, and also in her diary, said that at first she thought that Mr. Anthony was the author of these anonymous letters, because of a post-office fight, and because he was a bitter enemy of Col. Carpenter. In her answer to the petition of the plaintiff, which was sworn to and filed by her, she stated as follows: “She believes, and charges the fact to be, that they [the anonymous letters] were gotten up and sent by the procurement of the plaintiff himself for the purpose of making testimony against her [Mrs. Carpenter].” On the trial she admitted that she did not believe that either Col. Anthony or Col. Carpenter was the author of the anonymous letters, and she did not know who the author was. It does not ap
The next question to be considered is, whether the facts as found by the trial court and as proved on the trial constitute
The legal question that arises upon these facts is, whether they constitute “ extreme cruelty,” or not, 'within the mean
None of the foregoing cases are precisely like the present-case, but many of them sustain the principle above enunciated ; and taken together, they clearly show the tendency of modern thought upon this subject. The tendency of modern thought is to elevate the marriage relation and place it upon a higher plane, and to consider it a mental and spiritual relation as well as a physical relation. In the present case the-conduct on the part of the defendant below was not only such as would tend to wound the feelings of the plaintiff below,, and to destroy his peace and happiness, and to impair his bodily health, but it was also such as would tend to put his life in danger. The legitimate result of the conduct on the part of the defendant below in sending the anonymous letters
Such conduct would also naturally tend to destroy his reputation and influence as a politician and officer, and to deprive him of his office and means of subsistence, and to utterly destroy his happiness and peace of mind. And mental suffering may be much greater than physical suffering. And the treatment Col. Carpenter received from his wife must have caused him intense suffering, great anguish of mind and spirit, and inexpressible sorrow. According to his own testimony, his grief was literally overwhelming.
It is our opinion, not only upon the authorities, but also as an independent proposition, that the conduct of Mrs. Carpenter toward her husband amounted to extreme cruelty within the meaning of the divorce statutes, and therefore that Colonel Carpenter is entitled to the divorce prayed for in this action, and granted to him by the court below. Of course many of the wrongs committed by Mrs. Carpenter would not, if taken separately, amount to extreme cruelty, or authorize the granting of a divorce. The recording of the false accusations in her diary would not; the sending of the insulting letter to Colonel Carpenter after their separation would not; or the filing of the answer in the present case, with its unjust charges, would not; but these, with all the
The plaintiff in error, defendant below, complains that the court below erred in rendering judgment for costs. Now the court below imposed all the costs of the case upon the defendant in error, plaintiff below, except one-half of the stenographer’s fees, and the costs made by the defendant below in taking certain depositions which were not used on the trial; and no judgment was rendered for these excepted costs. We do not think that the court below erred as against the plaintiff in error, defendant below, with respect to costs.
Perceiving no material error in this case, the judgment of the court below will be affirmed.