McBride v. McBrideMcBride v. McBride
- Reporters:
- , ,
- Before:
- Robinson
Lead Opinion
“’Tis sаid, alas! that love should wound itself and sweet affection prove the spring of woe.” In the springtime of life, some thirty years ago, the рarties to this action met, loved, and plighted their vows. She has borne him five children, now young men, whose ages vary from twenty-nine to seventeen years; but now, as the passions of youth have naturally waned, and “age has cloyed love and use destroyed love,” she brings this suit to sever the bonds of matrimony. She avers that during the past two years defendant has treated her in a cruel and inhuman manner, by calling her bad nаmes, abusing and assaulting her, and by making false charges against her chastity. She also avers that he has been guilty of intemperance in the excessive use of intoxicating liquors.
It appears that in January, 1917, she commenced a former action on the same grounds, аnd in two months they made a settlement. He, in a manly way, to some extent, confessed and did penance by conveying to her money and property worth several thousand dollars — enough to secure her in all the comforts of life — and she still retains the same. Hencе, it may be said that she is a free and independent lady; if she does not like tho defendant, she does not have to live with him. Two weeks after the settlement the poor lady found it necessary to go to a hospital and to endure an operation for cancеr of the breast. There she remained for some five weeks, and during that time he did not fail to kindly visit her twice a day. Soon after her return from thе hospital he became enraged and fumed and scolded on seeing the fee bill presented to her by the attorney in the divorсe suit, and again he had recourse to the bottle. Then she insisted that he should live at the hotel and not at his home. This he did for several mоnths, and in the meantime he furnished all the usual supplies for the house, until the plain*331tiff left it and refused to live with him and commenced this suit. At the time of thе marriage defendant was a bartender in a saloon at Towner. Then for eight years he was county judge. Then he‘kept a drug store and made it a success. So there is no charge that the plaintiff was ever denied all the comforts of life. Defendant swears that hе still loves her and that she has been to him a good and true wife. His hope is that “time and regret may recall her again.” The trial court justly dismissеd the action, and the good lady appeals.
The statute permits a divorce for extreme cruelty ,and for habitual intemperance. Comp. Laws, § 4382. Extreme cruelty is the infliction by one party to the marriage of grievous bodily injury or grievous mental suffering upon the other. § 4385. Habitual intemperance is that degree of intemperance which disqualifies the person a great portion of the timе from properly attending to his business or which reasonably inflicts a course of great mental anguish upon the innocent party. § 4386. Habituаl intemperance must continue for one year before it is a cause of divorce.
There is no showing that defendant has been guilty of any such intemperance or cruelty. It is true that he has been given to the excessive use of liquor, and at times, when under the influenсe, he has used bad and drunken language to the plaintiff, but he has never assaulted or struck her, or neglected to provide well for hеr and her family. Indeed, there is no just claim that since the settlement the defendant has given the plaintiff any just cause for divorce. The сlaim is that by his subsequent conduct the contract of settlement has been revoked so that all the sins of his life now rise up against him, but the clаim is neither just nor legal. The record shows no cause for a divorce at any time, and the settlement wras no ordinary condonatiоn. There was a valid contract, based upon a consideration of several thousand dollars, which the defendant has recеived and retained. The whole conduct of the defendant taken into consideration does not in this case show cause for dissоlving the marriage.
The judgment is affirmed, without costs.
Christianson, Ch. J., concurs.
Concurrence Opinion
(concurring). I concur in an affirmance of the judgment, but I desire to add to the opinion already written in the case а brief statement indicating more adequately tho reasons which lead to the conclusion. A careful reading of the record fаils to result in a conviction that the plaintiff’ has sustained the burden of proof either upon the charge of cruelty or of habitual intemperance. The testimony in relation to the cruelty charges, particularly, is conflicting, and the tt ial judge, who had the benefit of a better opportunity to weigh the testimony of the witnesses, has found against the plaintiff. This finding should stand. It is noteworthy that two sons of the marriage, who were in the best position perhaps to corroborate the testimony of one or the other of the parents with respect to those charges, did not testify. It is true that the record shows that the plaintiff made some effort to obtain testimony from this source, but in view of the methods available for obtaining testimony we can hardly assume, upon appeal, that it was impossible for either party to obtain needed evidence where the witnesses are living, available, and competent. Perhaps the natural explanation of their failure to testify is their desire to discountenance the proceeding. The record in its present state leavеs a well-grounded doubt in the mind as to whether the defendant was guilty of extreme cruelty toward the plaintiff.
Upon the charge of intempеrance, it is frankly admitted by the defendant that he has fought a hard fight against the seductive wiles of strong drink, and that he has four times taken the Neеley cure with all of its attendant unpleasantness; But his business must have militated considerably against his efforts to avoid drink. At the time the parties were married the defendant was a bartender in a saloon at Towner. Later, he was county judge for a period, and thereafter and for a long period since he has been engaged in the drug business. It appears that he has not drunk sufficiently to preclude a successful management of his business, for he has accumulated considerable property. The spells which the plaintiff attributes entirеly to drink the defendant attributes to other physical causes. A substantial doubt also exists with respect to this charge.
Considering the ages оf the parties, their period of life, and the length of time they have lived together, along with the inconclusive character of thе testimony to prove the charges upon which relief is *333sought, I am of the opinion that justice would not be subserved by reversing the judgment of the trial court and granting a divorce.
Bronson, J., concurs.Concurrence Opinion
I concur in the result.