132 Iowa 191 | Iowa | 1906
This is a suit for divorce on the ground of desertion, and was begun July 30, 1904. The defendant denied that she had left her husband and, by way of cross-petition, alleged that he had been guilty of cruel and inhuman treatment, and on this ground prayed for the dissolution of the marital relations. To this cross-petition
To constitute desertion there must be not only a separation, but an intent to cease to live together as husband and wife, an abnegation of all the duties of the marriage relation. While this must be wrongful; that is, in disregard of the marital obligations, it is not essential that it be with any purpose of working an injury. Thus, in Benkert v. Benkert, 32 Cal. 467, the court in defining “ willful desertion,” said that it “ ordinarily signifies intentional, and that, we think, is its signification here. It does not imply any malice or wrong towards the other party. The word does not seem to have limited the meaning of the term ‘ desertion ’ as construed in the eases and employed by text-writers. The cessation of the matrimonial cohabitation is never treated as desertion, unless it is both intentional and wrong
The parties were married March 9, 1901, and on December 7th of the same year to them a child was born. Thereafter she was in poor health. Several physicians were consulted without beneficial results, and she concluded to seek medical aid at Iowa City. He conveyed her with a sister to the railroad station, some seven miles distant, but insists that he was not advised of the purpose of her departure save that it was to visit her parents, while both women testify that the matter was discussed. As nothing occurred to suggest the thought that she was leaving him, the dispute is immaterial. If she took all her . clothes they were no more than necessary. If she merely went to her parents’ home for a visit, promising to return in- a couple of days, she rightly consulted a competent physician who ascertained that her uterus had been lacerated in confinement and, upon his advice, rightly remained for treatment and an operation. If the plaintiff objected to this, save the expense incurred, the record does not disclose the fact. He visited her both before and after the operation which occurred July 3d and, throughout this period, she wrote frequently and affectionately. She remained at the hospital over three weeks, when he took her to the home of her parents, about a half mile distant, though the inference to be drawn from the record is that he had expected that she would then return • home with him, a distance of twenty-three miles. The sufficiency of her explanation that she dids not feel able to ride so far, and that the physician had advised her that she should not indulge in sexual intercourse prior to January 1st following necessarily depends somewhat on her condition at the time and the nature of her husband, certainly cannot be regarded as so unreasonable as to indicate bad faith. Indeed, she then promised him that she would return, and the record is void of any circumstances indicating an intention not to do so, aside from the mere remaining at
Reversed.