77 Neb. 180 | Neb. | 1906
The plaintiff, Sarah A. Griffith, brought this action in the district court for Richardson county to obtain a divorce from her husband, William E. Griffith, alleging as a ground therefor that defendant had been guilty of extreme cruelty toward her. Defendant answered, denied the acts of cruelty, and by way of cross-petition alleged that plaintiff had been guilty of adultery on several occasions, and prayed for a divorce on that ground. The lower
1. The evidence offered in support of plaintiff’s petition was to the effect that defendant often cursed plaintiff, frequently came home intoxicated, and by insinuative and profane language accused her of having wrongfully entertained men at their home during his absence; that he often told her he did not care for her, threatened to break her head open, and made other threats of personal violence; accused her of having a bad disease; that he did nothing toward ‘ making her life enjoyable. Such it appears has been his conduct to a greater or'less extent since their marriage in 1888, increasing, as time advanced, in the display of anger, jealousy and making of threats, until the plaintiff, through fear of her husband, left his home, and soon thereafter instituted this suit. This evidence is denied by the defendant; but plaintiff’s testimony was corroborated, and we consider that the proof supported plaintiff’s petition, and showed that the conduct of defendant was so abusive that the legitimate ends and objects of matrimony were destroyed, and that the decree of the trial court should be affirmed, unless the proof discloses that plaintiff committed adultery as alleged in the cross-petition, and that such acts, if proven, were not connived at or condoned by the defendant.
2. Defendant introduced testimony which he claims was sufficient proof of plaintiff’s guilt on at least three occasions with three different men. Counsel for defendant cannot successfully contend, in view of the denial of the wife and the finding of the district court on conflicting evidence, that the proof conclusively shows that plaintiff was guilty of adultery Avith two of these parties. It is,
Plaintiff herein did not plead condonation, nor did she offer evidence to prove it. The absence of such a plea on her part, however, does not prevent tbe court from considering tbe same. It appeared from the defendant’s own testimony that, were these charges of infidelity true, be bad condoned them, and under such circumstances tbe court will of. its own motion consider such facts in its decision of the case. In 2 Bishop, Marriage, Divorce and Separation, sec. 631, it is said: “By reason of tbe suit being triangular, and the public being a party to it, a fact of condonation appearing is fatal to tbe plaintiff’s claim, though tbe defendant has not pleaded it; not because the latter has any just right to take the objection, but because public policy does not permit the divorce. And tbe public, which does not plead, objects through the conscience of the judge. Chancellor Walworth went so far as to say that if there is reason to believe this defense exists, the court, ex officio, may at any time before a final decree direct an inquiry to ascertain the fact.” Nor does the husband’s condonation exempt him from liability in an action for divorce founded on his own wrongs., It is not the sense of this opinion to approve in any way the deplorable conduct of the wife shown by the evidence, but a court of justice cannot refuse relief to one simply because the evidence raises a strong presumption, or even proves, that such an one formerly indulged in sin and crime.
We are of opinion that the defendant is in no position to urge to a court of equity the infidelity of the plaintiff, and we recommend that the judgment of the district court be affirmed.
Affirmed.