Mosier v. Mosier

174 P. 732 | Or. | 1918

JOHNS, J. —

We have carefully read all of the testimony and examined all of the exhibits, including the broken false teeth, tom shirtwaist and the photographs of the defendant. It is true, as counsel says, that there is a large amount of perjured testimony in the record; it is also true that under the allegations of the complaint a very large amount of the testimony is wholly immaterial. Yet there are many undisputed material facts in the record.

At the time of their marriage the plaintiff and the defendant did not have any home or property rights and were wholly dependent upon their own personal efforts and labor, and the testimony is undisputed that for the first twenty years of their married life they lived happily together, were devoted to each other and were saving, economical, thrifty and industrious, as a result of which they perfected and acquired title to a homestead which they cleared and developed and upon which they made valuable improvements. Defendant claims and the testimony shows that during all of that period, in addition to her housework she labored in the fields and assisted in the clearing of the land and the planting of the orchards and performed at least her share of the work in acquiring and improving the homestead, which they later sold for $8,000. With that money as a basis, the plaintiff continued to prosper, became a prominent business man and constructed a beautiful modern residence in the town of Mosier, where they made their home and were living at the time of their domestic troubles.

While living in their new home, the defendant claims that she became rheumatic and that for such reason it was necessary for her to have a climatic change, and she made different trips to the City of Portland and two trips to the State of California, during most of which time the plaintiff remained at home, looking after his business interests. For want of children, the plaintiff and the defendant undertook to adopt, and thought that they had legally adopted an infant girl, who was reared and educated by them and who at the time of their troubles was about twenty years of age. While not away at school, the girl, Alice, remained at home with the plaintiff during the different times the defendant was in Portland or California.

1, 2. A large amount of evidence was introduced as to the actions and conduct of the defendant while she was away on her trips. All of such trips were made with the apparent consent and approval of the plaintiff, and while the defendant’s conduct was not above reproach and is subject to censure, we do not know upon what theory or legal principle her alleged actions while she was away from home would be any evidence of cruel and inhuman treatment of the plaintiff. It appears from the record that during the time the defendant was on her last trips a certain school-teacher lived and resided at the home of the plaintiff with his daughter Alice. Alice testifies that after she returned home the defendant wanted the school-teacher to leave, and while the plaintiff and the defendant may theretofore have had some minor trouble and had ceased to love and respect each other as in their days of youth and poverty, it was then and there that serious trouble first arose between them. They then became suspicious and lost confidence in each other and. the defendant then felt that in a large measure the schoolteacher had assumed her own place at the family table and fireside; Alice also testifies, and on that particular point her testimony is uncontroverted, that she was awakened at 2:30 a. m. and arose, going downstairs, where she found the plaintiff and the schoolteacher alone in the kitchen without a light. The testimony is also undisputed that the plaintiff, under an assumed name, received letters through the postoffice at Hood River. Further, the testimony is undisputed that the plaintiff committed an assault upon the defendant in a public place, in the presence of divers individuals, and forcibly and violently removed her shoe from her foot. While it may be true that there is perjured testimony, that the defendant is at fault and her conduct is subject to criticism, we are of the opinion that the plaintiff is not without blame and that he is equally at fault and subject to like criticism. For such reason, under the facts disclosed in the record neither of them is entitled to or should have a divorce. The decree is reversed and neither party shall recover costs in either court. Reversed.

McBride, C. J., and Bean and Burnett, JJ., concur.