97 Wash. 475 | Wash. | 1917
Appeal from a judgment of dismissal granted at the conclusion of appellant’s case in chief. The action is for divorce, the complaint reciting a long list of grievances upon which the decree was sought. No more of this tale of domestic infelicity will be recited than is necessary to an understanding of the conclusions reached. The parties are forty-six years of age and were married in December, 1894. A prior action was begun by appellant in April, 1915, which was dismissed at the suggestion of the then trial judge that the parties make another attempt to adjust their differences
During the trial, appellant, who was a photographer, admitted that on occasions he had taken one of his female employees to a restaurant and had driven her from her home to his studio in his auto. No issue was made as to any misconduct with this young woman on the part of appellant. In fact such charge was expressly disavowed by counsel for respondent, as appears from the following reference to the record. On appellant’s cross-examination, counsel for respondent inquired of him how often he had taken this young lady out in his auto, to which objection was made as not in the issues. Counsel for respondent then said: “His wife is not charging him with adultery. I believe he is an honest man, and there is no such thing as adultery in this case. I will say that now.” At the close of appellant’s case, the lower court dismissed his action upon the ground that appellant’s conduct with this young woman was improper and constituted such cruelty as to deprive him of the right to complain of the conduct of his wife. In this we think the lower court was in error.
It is not necessary to say what conduct upon the part of a husband in associating with other women will deprive him of the right to seek a divorce from his wife. There is in this case neither allegation, claim or proof of any such misconduct. Had the wife sought a divorce because of the husband’s relations with this young woman, her case would have
In Cowles v. Cowles, 112 Mass. 298, it was held not to be cruelty under a statute in which cruelty must be such as to cause injury to life or health or to cause danger of such injury or cause a reasonable apprehension of such danger. Such refusal is held to be cruelty in Michigan, Campbell v.
“Cruel treatment of either party by the other, or personal indignities rendering life burdensome. . . .
“And a divorce may be granted upon application of either party for any other cause deemed by the court sufficient, and the court shall be satisfied that the parties can no longer live together.” Bern. Code, § 982.
Under this statute, we have no hesitancy in saying that respondent’s denial of sexual intercourse for twelve years without sufficient ground or cause is ground for divorce. In Gibson v. Gibson, 67 Wash. 474, 122 Pac. 15, the denial of sexual intercourse for six months immediately after the marriage was found as one of the facts, upon which the court based a finding of cruelty sufficient to entitle the complaining party to divorce. In the language of some of the cases, the frequency of sexual indulgence between husband and wife is more a question of conscience than of law, and for this reason the courts have not attempted to lay down any standard the violation of which would be ground for the severance of the marriage relation. While this is true, it must likewise be true that the law can say that, under a statute like ours, the denial of a desire so strongly implanted in human nature and an unquestioned marital privilege is the denial of that harmony and unity which lies at the very root of the marriage relation and tends to that which renders life burdensome and, under our statute, is a cruelty sufficient to satisfy the court that the parties can no longer live together. It may be the
Respondent argues that the complaint is insufficient to grant appellant the relief prayed for. As against such objection now made, or at the time of the trial, the complaint was sufficient. It may be that, had respondent endeavored to have obtained a more specific statement of appellant’s charges, such relief might have been granted. But failing in so moving, the complaint was sufficient after issue joined. The brief of respondent in support of the judgment says:
“So the repeated attentions of the plaintiff to a young and unmarried woman at the expense of that portion of his time to which his wife and family were justly entitled assume the proportions of a sin against the marriage which he seeks to dissolve.”
Whatever may be the facts, the record fails to disclose that appellant’s relation with the young woman referred to was such as to charge him with “a sin against the marriage relation.” Charges of this character should be proven clearly, not intimated and suggested, and until such proof is made, appellant is entitled to such relief as the facts and law warrant.
Reversed, and remanded for further proceedings.
Ellis, C. J., Main, and Chadwick, JJ., concur.