58 Kan. 748 | Kan. | 1897
B. F. Masterman commenced this action against his wife, in the District Court of Montgomery County, to obtain a divorce. The ground alleged in the amended petition is extreme cruelty, and the specifications are that, about the first of December, 1888, and at divers times thereafter, the defendant charged the plaintiff with unchastity, and with maintaining unlawful sexual relations with various women, and especially with Mrs. Ben M. Armstrong ; that, while pretending to believe the false charge, and knowing it to be false, she left the bed of the plaintiff; and that she, at various times and places, accused the plaintiff of unchastity and of adultery with Mrs. Armstrong and other persons, to various persons named in the petition, as well as others unknown to plaintiff; and that, by such conduct, the plaintiff had been greatly humiliated and disgraced, his peace of mind destroyed, his health impaired, and the ends of matrimony defeated. The answer of the defendant was, first, a general denial; second, a plea in bar, that on the sixth of January, 1893, in an action instituted by the plaintiff in the District Court of Latah County, Idaho, for the purpose of obtaining a divorce from the defendant upon the identical grounds stated in the petition herein, it had been determined by that court that the plaintiff was not entitled to a divorce, and a judgment was thereupon rendered in favor of the defendant. A
When the case came on for trial the defendant demanded a jury, which was refused. This is the first allegation of error. The claim is not tenable, however. The defendant was not entitled to a jury as a matter of right. Carpenter v. Carpenter, 30 Kan. 712.
The second specification of error is in the admission and rejection of evidence. The testimony .took a much wider range than that covered by the charges in the petition. But as an action of divorce is determined by the court alone, great latitude is usually allowed in order to give the court a clear understanding of the conduct and motives of the parties. The cases are rare in which a judgment of this kind would be reversed merely because too wide a range of testimony was permitted, bearing even remotely on. the charge relied on as a ground for divorce.
“About that time was the time my wife commenced making these charges. I had said nothing to her about the scarlet fever. That was kept quiet. The neighbors talked a good deal about my going there, as I learned afterward. In the meantime, before she got up, Colonel Bristol [Mrs. Armstrong’s father] got his leg broken, and I treated him. Immediately following that, Mrs. Armstrong was suffering from a very per*753 sistent and severe cough, and I treated her for that; after that, Mrs. Bristol was taken sick with nervous prostration and . ... with which she had suffered before, with which she laid sick for six weeks longer. During all this time, I was at one or both of the houses whenever it was necessary, as a physician, and only as a physician.”
The attendance of the plaintiff on members of these families continued from December, 1888, until about September or October, 1891. In December, 1888, the parties commenced occupying separate rooms. The plaintiff says that his wife said she was not going to sleep with him any more, and that he said that was satisfactory to him if it was to her; that she then put a bed in the parlor for herself, and that he slept with the children in an adjoining room. The defendant, at that time, was pregnant with a child, born the following February. The parties continued to live in the same house, occupying different rooms, until about the fifteenth of May, when the plaintiff quit sleeping at his house. It will be observed that the cruel treatment is charged to have been inflicted during the period commencing in December, 1888, and that this is. the same period during which he was in constant attendance on some member of Mrs. Armstrong’s family. One circumstance detailed in the evidence of the plaintiff occurred in July, 1892. The plaintiff was then treating Mrs. Armstrong for an injury of the spine It was his custom to go every evening and administer a treatment by electricity. On his way there the defendant met him, and, he alleges, said in a loud voice,— “You had better be at home taking care of your family than running after whores and prostitutes ; ’ ’ and continued to use abusive language as long as he remained within hearing. Her sister, Mrs. Heady, was with her in a buggy at the time. She was called as a witness by
Several of the ladies named in the petition as persons to whom defendant had charged her husband with infidelity were called by the plaintiff and interrogated in that particular. Some of them answered that Mrs. Masterman had never made any such statements to them or in their hearing. Neither of them, except Mrs. Heady, her sister, remembered her ever having made a statement with reference to the matter. It is apparent from the testimony that the constant visits of the plaintiff at the Armstrong house became a matter of comment among the neighbors, and were regarded by them as of questionable propriety, if not indicative of criminal conduct. The court found that the plaintiff was not guilty of any improper intimacy with Mrs Armstrong, or any other person. This finding accords with the testimony, and must be accepted as conclusive on this point. This, however, does not determine the question whether, in complaining of her husband’s conduct, the defendant was cruel, or was merely expressing in a natural way the feelings of a wife, engendered by conduct calculated to arouse her jealousy. It is perfectly clear from all the testimony in the record, and is even stated by the' plaintiff in his direct testimony, that his frequent visits at the Armstrong residence attracted attention and occasioned gossip. Under the circumstances, it may be conceded that it was the duty of the wife to resolve all doubts in favor of the honor of her husband. But he also
We adhere to the doctrine that words may be as cruel as blows; yet it does not follow that every use of words which inflict pain is cruel. If it were so, matrimonial bonds would have but little strength in the eye of the law. For how many married pairs are able to live together for a considerable period without, at some time or' other, by word, grievously wounding the feelings of each other? In the home, love must be the law, and mutual concessions remove all occasions for controversy. The interference of courts can never be invoked beneficially to settle differences in the family. It comes only as a last resort, to separate those who fail or refuse to make home what it should be. We are unable to say that the testimony contained in the record shows that the defendant in this action was guilty of cruelty. It. may be true, it doubtless is true, that her conduct is: not altogether justifiable; but the same may be as; truly said of that of the plaintiff. The evidence introduced on behalf of the defendant shows that the plaintiff persistently sought a divorce from his wife ; that through- mutual friends he asked that she institute an action against him, and promised to interpose no defense, even though she charged him with adultery. He brought an action in the Idaho court, falsely claiming to be a resident of that State. When defeated there, he returned to his home and, after the lapse of little more than a year, commenced this ac