delivered the opinion of the court:
Plаintiff in error, Anna Louise Garrett, filed her bill for divorce March 21, 1910, in the circuit court of Mercer county against her husband, Robert Lee Garrett. The bill alleged that she was a resident of Mercer county and had conducted herself as a chaste and dutiful wife, but that her husband had been guilty of extreme and repeated cruelty and for more than two years had been a habitual drunkаrd. The defendant in error answered, denying all the material allegations of the bill, and charging his wife with extreme and repeated cruelty toward him and with habitual drunkenness for more than the statutory period. The cause was submitted to a jury on the issues whether the husband had been guilty of habitual drunkenness or extreme and repeated cruelty, whether the wife had been guilty of habitual drunkennеss or extreme and repeated cruelty, and whether she was a resident of Mercer county when the bill was filed. The jury returned a verdict on all issues in favor of the wife. Motion for new trial having been overruled, a deCree was entered granting the wife a divorce, alimony and solicitor’s fees and the custody of their only child. On" appeal the Appellate Court reversed the decree on the ground that the parties were equally in fault. The case has been brought here on petition for certiorari.
The first question to be considered is whether the circuit court of Mercer county had jurisdiction. No cross-errors have been assigned by defendant in error, but as the question of complainant’s residence in a divorce casе goes to the jurisdiction of the subject matter of the suit it is open to consideration even though not raised or passed upon in the Appellate Court. (Becklenberg v. Becklenberg,
The Appellate Court held that the evidence justified the jury in finding that the husband had been guilty of extreme and repeated cruelty towards the wife, and that he had also been guilty of habitual drunkenness for the space of two years. No cross-errors have been assigned by defendant in error, therefore those conclusions cannot be questioned here. (Vose v. Strong,
At the time of the hearing in the trial court the husband was forty-six years of age and his wife twenty-six. Two children were born of the marriage,—a boy, who died when nine months old, and a little girl about three years old. The evidence is uncontradicted that the husband drank steadily from the time of the marriage up to the time of the trial. The wife testified that he was intoxicated a large part of the time after their marriage, and we think the great weight of the testimony in this record supports her on that point. He himself admits that he was in the habit of using intoxicating liquor and sometimes drank as much as a half pint of liquor before breakfast. The preponderance of the evidence also shows that he had repeatedly used personal violence towards the wife. It stands uncontradicted in the record that her person bore marks of this violence several times during their married liffe. Indeed, it is not attempted to seriously controvert either that he had treated his wife with extreme and repeated cruеlty or that he had been guilty of habitual drunkenness. The-chief contention of defendant in error here is that the wife cannot obtain relief because she herself was equally guilty as to both charges.
It is the settled law that divorce is a remedy provided only for an innocent party, and when each party has cause for divorce against the other of the same statutory character neither can be granted a divorce; that a defendant charged with extreme and repeated cruelty may show in defense that the complainant was equally cruel. (Duberstein v. Duberstein,
Two occasions are especially relied on as showing that the wife had treated the husband with personal violence. On one occasion she and her husband were driving in a livery rig. Defendant in error and Mrs. Wеsterfield were on the front seat, and plaintiff in error, her little girl and Mr. Westerfield were on the back seat. Garrett testified that he had been whipping the team and waving the whip over the horses’ heads and his wife got to fussing about it and tried to take the whip out of his hands; that he and Westerfield left the carriage for a few moments, during which time his wife threw the whip away; that when he camе back and took the lines the row started because she did not want him to drive so fast. From the testimony of the Westerfields it appears that Mrs. Garrett struck defendant in error in the mouth, making it bleed; that he got out of the buggy and went toward the back seat, and that she held a bottle of beer, and, using a vile epithet, told him to get in the buggy and behave himself or she would “brain” him. The wife agrees аs to the cause of the difficulty but says her husband called her a vile name and she slapped his face; that he came around to the side of the buggy, threatening to choke her, and she picked up a bottle and called him a “dirty, white-livered cur,” and told him if he touched her she would lay him out like a dog. It is apparent from the testimony of all that the defendant in error had bеen drinking heavily at this time; that they were carrying liquor in the buggy and drinking; that the three who were riding with defendant in error were trying to persuade him not to whip the horses and that the women were badly frightened; that Mrs. Westerfield had taken the lines from him before the end of the row because of his actions.
The other occasion relied on was while the couple were living on the farm. The defendant in error came home in the middle of the afternoon, drunk and quarrelsome, and wanted his wife to go back to town with him, which she refused to do. She testified that she called him a “dirty coward;” that he'grabbed her by the throat and spit in her face and struck her twice on the head, and that she then ran into the kitchen and seized a fire shovel, and on his following her into the kitchen she struck at him with the shovel, and as he raised his arm just at that time the shovel hit him on the side of the face; that he then threw her against the wall and across a chair; that the hired man made him stop. He claims that when his wife struck him with the coal shovel he was doing nothing in particular but had his hands folded behind his back; that she used all the force she had, and he could not see out of one eye the next morning. The hired man in question did not testify but his affidavit was admitted as evidence on the trial, in which he swore that while in his presence Garrett did nothing to his wife on the occasion when she struck him with the shovel. Garrett testified that on several other occasions his wife struck him with her fist.
Defendant in error also testified that his wife used violence towards him and called him vile names a few days befоre she finally left him. It appears that he insisted on getting into bed, when under the influence of liquor, with some of his clothes on, and, on her objecting, a quarrel arose which ended in a physical contest. The testimony of the husband and wife is not in accord as to just what took place, but he admits that he finally succeeded in “licking her,” as he put it, admitting that he tore her petticоat off and tore her other clothes, and that she took the baby and went through the snow to a neighbor’s home, where she spent the rest of the night. The uncontradicted evidence shows that she carried black and blue marks as a result of his treatment for some time thereafter, and she testified that at the time of the trial she had not entirely recovered.
As further characterizing Garrett’s actions towards his wife another instance of his repeated ill-treatment should be referred to. He had a loaded revolver in the house, and she testified that being afraid, on account of certain things he had said, that he would use it, she took it from the bureau drawer and hid it under the mattress. While under the influence of liquor he found that it was gone from the bureau, and, рointing his shot-gun at her while she was in bed with the baby, told her if she did not give up the revolver he would shoot her. He testified that the gun was not loaded, while she testified that she thought it was. The revolver was loaded. She grabbed the gun, and after a little struggle he seems to have set the gun down and found the revolver under the mattress, and they struggled over that, when she finally told him if he would call one of the hired mеn from the bam and give the revolver to him she would let him have it. As a result he took the revolver and ejected the cartridges from it and threw it into the fire.
Before commenting further on the question of the plaintiff in error using physical violence towards her husband,' it seems necessary to take up and discuss the question as to whether she was guilty of habitual drunkenness. Cruelty, especially by thе husband, seems naturally to arise from the excessive use of liquor. This court long agp said: “A sober man would scarcely dare to strike a woman, while one under the debasing influence of liquor might be guilty of any enormity.” (Coursey v. Coursey,
Without question plaintiff in error said and did things that a wife under ordinary circumstances never should say or do to her husband, but in almost every instance in the record the evidence tends to' show he had first provoked and exasperated her by his words or actions. It is very difficult to say how much ill-behavior on the part of the wife will in a given case take away her remedy. It has been sаid that “the criterion by which, in human tribunals, the conduct of human beings is to be estimated, should be formed, not according to the rule of ideal perfection or of occasional excellence, but according to the standard which, being attainable by the various classes to which it is to be applied, is sufficiently high to insure the preservation and promotion of the. mоrals and good of society.” (Mayhugh v. Mayhugh,
The contention is also made that the decree of the trial court is erroneous as to the amount of alimony. As finally entered the dеcree allowed $50 a month,—$35 for the wife and $15 for the child. The testimony shows that the wife had no property, and that as the child was but three years of age the wife could not seek employment and thus support herself. The evidence shows that the husband owned a farm of 170 acres, mortgaged for $7500, and worth, according to various witnesses, from $150 to $225 an acre and renting at $6 an acre. It also shows that he had a small amount of personal property, and was in debt, besides the mortgage, several thousand dollars. Under the facts in this record we are of the opinion the allowance of $50 per month was excessive. Thé decree will therefore be modified by requiring the defendant in error to pay to the plaintiff in error, for the suppоrt of herself and child, the sum of $400 per year, in quarterly installments of $100 each, beginning with the.date of the decree. The circuit court has power to modify this decree from time to time as changed circumstances may require. Hilliard v. Anderson,
The judgment of the Appellate Court will be reversed and the decree of the circuit court, as modified, will be affirmed.
Judgment of Appellate Court reversed.
Decree of circuit court modified and affirmed.
Mr. Justice Cooice took no part in the consideration or decision of this case.