166 P. 525 | Or. | 1917
delivered the opinion of the court.
The parties were married in Denver, Colorado, April 16, 1900, and after a married life of increasing rancor finally separated in Chicago, September 13, 1910. The plaintiff is a promoter. When he married her the defendant was a manicurist. As a side-light upon the dramatis personae we note that the plaintiff offered proof on cross-examination of the defendant and she admitted that prior to their marriage they made a trip from Denver to New York and back as man and wife about February, 1900. With this advertisement of each other’s characters and propensities it is not to be wondered that each was suspicious of the other. In the view we take of this case it is not requisite that we should undertake to justify her conduct in any respect.
It is practically undisputed on the part of the plaintiff that he was exceedingly strict with the defendant and watched with the eye of a lynx everything she did in which other men were concerned and taunted her frequently with the fact that he had a blonde beauty who was waiting for him and would take up with him at any time. She gives much evidence of his intimacy with other women in ways that were at least questionable and indiscreet. She testifies that on one occasion she learned he had registered with another woman at the Palmer House in Chicago as G-. B. Hengen and wife; that she went there and after some difficulty succeeded in gaining entrance into a bedroom where she found him and one Lillian Koch together. His account of this affair is to the effect that he became
It appears that the friction between the two began almost immediately after the marriage. They seem
“What was the cause of her leaving and what did she say when she left?”
He answered:
“We had our usual quarrels; she had nagged and nagged until we had a general row and it seemed that the only thing I could do was to get out and get away; the lease being pretty near up anyway, and the people had returned and wanted their flat, and we settled up there and she was going home to her people in Colorado and she left.”
Speaking of an occasion in which he came home in an automobile he says:
“Mrs. Hengen immediately accused me of having the chauffeur drive me to a house of ill-fame, and I denied it and we had a quarrel and she got up and reared around.
“Q. What did she do?
“A. She holloed and I feared that the neighbors all through the block would come in.
“Q. Had you touched her or anything?
“A. I had not touched her. I finally made up my mind — I had some pride — I made up my mind if there was going to be a scene I would get out so the matter would not attract attention. And she ranted around there and I got up to go out and she tried to keep me from going out of the front door fifteen or twenty feet from where I stood and I shoved her aside a like that [indicating] and I went out and she screamed and before I got halfway downstairs people in the same building — (that entrance that I went out of I think served six people), so some of those people came out to see what the trouble was; I was well ashamed of having anything occur at my home that attracted attention and I went out and went away.
“Q. Did you strike her at that time?
*161 “A. No, sir.
“Q. She claims her lips were cut and arms bruised.
“A. She fell against a book case in the hallway.
. “Q. Did you strike her?
“A. No, sir. I pushed her away so I could go out.”
Her story of this occurrence is that he knocked her down with his fist. A neighbor and his wife came in a few minutes after the plaintiff left on this occasion and testify that her lip was cut and bleeding and her arm was skinned and bleeding from the wrist to the elbow. He gives also the following testimony:
“Q. You do not claim that you are free from resenting these things when she accused you of them? You resented the accusations?
“A. I certainly did.
“Q. Did you call her any bad names?
“A. You know what you would do in a quarrel, you will say a good many things. I don’t know that I used any profanity. You know what you would do when you have had a quarrel.
“Q. * * "Would you say that she lied?
“A. Yes, sir; I may say she lied because she did lie. *
“Q. Did you ever accuse her of adultery or anything of that kind?
“A.. I don’t think I did.”
He admits going to Chicago Heights with Lillian Koch and this was one of the elements of the altercation in his office where he shoved the defendant into an inner room. He also concedes that he went alone to the Hilker residence to play cards with Mrs. Hilker and met her by appointment at a hotel in Chicago. There is much evidence of his being very attentive to a Miss Mills at various times in the afternoons and late at night. The defendant and her sister testify that Mrs. Hilker confessed to them that she had committed adultery with the plaintiff and as a result had
In Beckley v. Beckley, 23 Or. 226 (31 Pac. 470), speaking by Mr. Justice Moobe, this court laid down the rule thus:
“To entitle one to a decree of divorce for cruel and inhuman treatment, the injured party must come into a court of equity free from the suspicion that he has contributed to the injury of which he complains. Divorces should not be granted by weighing the evidence and decreeing in favor of the one least guilty, where both have taken an active part in the mutual discord. Equity relieves the injured party, but not the vanquished. In the struggles for supremacy, or to vent spleen, spite or hatred, the willing actors may fight out the battles of wedded life, but they cannot invoke the aid of equity after their own efforts have failed.”
It was also said in Jones v. Jones, 44 Or. 586 (77 Pac. 134), that where the plaintiff was a willing and active participant in the quarrels and assaults of which she complained she was not entitled to a divorce. On the principle that one who comes into a
“Whenever a marriage shall be declared void or dissolved the court shall have power to further decree as follows:
* * “3. For the recovery of the party in fault, such an amount of money, in gross or in installments, as*164 may be just and proper for such party to contribute to the maintenance of the other.”
In the preceding section it is said:
“After the commencement of a suit, and before a decree therein, the court or judge thereof may, in its discretion, provide by order as follows: 1. That the husband pay, or secure to be paid, to the clerk of the court, such an amount of money as may be necessary to enable the wife to prosecute or defend the suit, as the case may be. * * ”
Reversed and Suit Dismissed.