125 N.W. 479 | N.D. | 1910
Lead Opinion
This is an action for divorce, and is here for trial de novo. Plaintiff had judgment in the court below for an absolute divorce and she was awarded the custody, until the further order of the court, of the three minor children, Bruce, born April 18,
The answer puts in issue by specific denials the various allega- ■ tions of the complaint under both alleged causes of action, and as to the charge of habitual intemperance he alleges that for many years “last past he has been afflicted with a physicial malady, which at irregular times, sometimes a few days apart, and sometimes several weeks apart, prostrates him, and that when thus prostrated he suffers excruciating and unendurable physical pain; that upon such occasions, and no others, defendant has been for many years accustomed to take small injections of a special preparation of morphine, the same being thus taken for the purpose of the recognized valuable therapeutic action of the drug upon the system, as well as the alleviation of such pains, and rendering it possible for defendant to endure the same; that defendant has never become addicted to the use of morphine or any like drug, and his use of the same was for the purposes aforesaid, and at the times aforesaid, and that the taking of the same under such conditions, and the amount taken, have been recommended and approved by the best medical advisers with whom defendant consulted-.” He denies “that he has ever become habituated to the use of morphine or other like drug, and denies that he ever used the same to any excess; de
Paragraphs 4, 5, 6, 7, 8, and 9 of the answer are as follows:
“(4) Further answering the complaint defendant denies that plaintiff, during her married life, has conducted herself towards this defendant as a dutiful wife, and on the contrary alleges that plaintiff for more than a year last past has been quarrelsome and faultfinding, has frequently shown little or no sympathy with defendant at the times when he has been prostrated with his physical malady, and that her conduct generally has lacked in sympathetic care and devotion to him. Defendant admits that for more than a year last past there have existed matters of dispute and misunderstanding between himself and the plaintiff, admits that they have occasionally quarreled, and admits that unkind words have been spoken by each of them; but defendant further alleges that in so far as such mis*358 understandings, disputes, and quarrels having occurred, or unkind words have been spoken, the same have been caused as hereinafter fully set forth; denies that the same inflicted upon plaintiff grievous mental or bodily suffering.
“(5) Further answering the complaint, defendent alleges that such bickerings, misunderstandings and quarrels as have existed in .the marital relations between the parties hereto have been very largely, if not wholly, produced and caused by unjust, unwarranted, and inexcusable interference and trouble-making on the part 'of the father and mother of the plaintiff herein. That her said family reside in Fargo, and have so resided for many years last past. That they and each of them have continually, for more than a year past poisoned the mind of the plaintiff against this defendant, and have interfered in the private family affairs of the defendant, and have misrepresented and maligned his actions and his motives, have manufactured and put in circulation the grossest and most inexcusable slanders and misrepresentations concerning him, and have instilled in the mind of the plaintiff a feeling of bitter hostility towards him because of certain alleged, but baseless and wholly imaginary, wrongs done her by the defendant. That plaintiff has at all times been greatly under the influence of her father-and mother; has listened to and followed their plans and designs has given ready credence to their false and unwarranted slanders against defendant, and that in this way the happiness of the domestic life of the plaintiff and defendant was greatly impaired and interfered with. That the father and mother of plaintiff, very soon after defendant’s marriage, conceived a bitter dislike to him, and since such time have systematically, and in all manner of ways, sought to instill into plaintiff’s mind a feeling of dislike and hatred for defendant. That in so doing the family of plaintiff have resorted to the bitterest malice, and the most unjust and cruel falsehoods, even to the point of recklessly, maliciously, and falsely charging defendant with infidelity to his marriage vow, and instilling in plaintiff’s mind a belief in such infidelity. That as a result of such malicious, cruel, • and unwarranted interference in the family affairs of the parties hereto, the mind of the plaintiff became and is poisoned against defendant, and she has been ready to believe the falsehoods and slanders thus circulated by her parents, and has herself charged this defendant with infidelity, and has stated to others that he was untrue and unfaithful to her.
*359 “((i) Further answering the complaint, defendent alleges that he has frequently begged plaintiff to free herself from the influences exercised upon her by her parents, and has frequently said to her they would live a happy and contented married life if they were free from the interference of her family. That prior to plaintiff’s abandoment of defendant, defendant on 'several occasions, for the sake of preserving their marital peace and happiness, offered to plaintiff to remove permanently from Fargo, to give up his professional practice in said city, and to remove to some other place where they would be free from the interference of plaintiff’s family, which offer plaintiff never accepted or agreed to.
"(7) Defendant further alleges that ever since his marriage with plaintiff he has furnished her with a home which was supplied with the appointments of comfort and luxury.' That he provided her with ample help for the domestic work, and with nurses at the time of her own illness and the illness of their children. That he supplied her with horses and carriages for her use in driving. That he provided her with money in a bank account standing in her own name, and replenished the same from time to time so that she could draw thereon as she desired, and otherwise gave her whatever was necessary for the reasonable gratification of her tastes and desires. That in the months of August and September, 1906, plaintiff took a trip to Alaska in company with her father, the defendant paying all her expenses incurred in connection therewith, and defendant charges that, while upon such trip, plaintiff being absent from Fargo more than eight weeks in making the same, the plaintiff and her father conspired to break up defendant’s home, and as far as lay in their power to wreck his .lomestic happiness, and to impair and destroy his professions standing. After returning from such trip plaintiff came back to their home, resumed the care of the house and the performance of her duties as housekeeper, and seemed glad to return. That on the 2"2d day of November, 1906, the plaintiff, without giving the defendant the slightest warning of her intention to do so, but as defendant is advised, and as he verily believes" the fact to be, in pursuance of a pre-arranged plan between herself and her parents, in the forenoon of said day, after defendant had left their home and gone down to his place of business, forsook and left the home of defendant in company with her father, taking with her the two children, one of whom was dangerously ill, and also tak*360 ing most of her personal belongings, and a large number of the' private papers and effects of defendant, and that without the slightest warning of such an intention on her part, and to the consternation and great surprise of this defendant, the plaintiff began this suit. That the plaintiff went to the home of her parents, and has remained there ever since the commencement of this suit, and that, although he has repeatedly sought to see her and obtain an explanation of her conduct, he has been refused by her parents the privilege of so much as seeing or speaking to his wife, and that his wife isaiow so completely under the influence, control and dominion of her parents that it is impossible for defendant to so much as see her, or to talk over with her their differences in the past, in all of which matters the plaintiff’s parents have acted with vindictive and cruel maliciousness, and with the intent to so poison the mind of plaintiff that she would be unwilling to return to her duties as the defendant’s wife.
“(8) Further answering the complaint, defendant alleges that since plaintiff’s departure from his home in Fargo, as aforesaid, he has continued to keep, and is now keeping, said home open, cared for b}'- servants, and, notwithstanding the premises, plaintiff has never returned, or offered to return, to her home, and has refused to even see defendant since her said abandonment of him.
“(9) Further answering the complaint, defendant alleges- that shortly prior to their marriage he presented to plaintiff a deed of conveyance to the south 95 feet of lots 11 and 12, block 33, of the original plat of Fargo, upon which to ere.ct their home; that thereafter defendant erected a dwelling thereon, the total value of such lots and dwelling being about $25,000; that such premises have at all times since been the homestead of the parties hereto, and the same are now occupied as such by the defendant. Defendant admits that he has had a large practice in his professional work, but denies that his income has been anything like the amount stated in the complaint, and denies that he has accumulated a fortune in the sum of from $300,000 to $500,000, or in any like amount. Defendant alleges that his income and the amount of his present worth are greatly exaggerated in the complaint; that while he has in fact enjoyed a large professional practice, a considerable proportion of the work done has been charitable, in its nature, and that a considerable proportion of the total charges made for professional work have been uncollectible; that exclud*361 ing the homestead in Fargo, the furniture and furnishing thereof, the barn and ground upon which it stands, and the horses and carriages therein, defendant at the present time is worth not to exceed $100,000, and that in his opinion the value of such property does not in fact exceed the sum of $75,000.”
Such answer also contains two counterclaims; the first charging plaintiff with extreme cruelty, and the second charging her with desertion on November 22, 1906. The first counterclaim, among other things, specifically alleges the following acts of plaintiff constituting the alleged extreme cruelty, to-wit: “That without cause, excuse or provocation, she has charged defendant with infidelity to his marriage vow. That she has charged him with being untrue and unfaithful to her since their marriage. That she has charged defendant with criminal intimacy with other women. That plaintiff also grossly slandered and abused defendant by stating to others that defendant has been guilty of infidelity to his marriage vow, that he had been criminally intimate with other women since his marriage to plaintiff, and that he had been untrue and unfaithful to her. That each and every of said charges and slanders were untrue, and were without foundation in fact. That defendant never gave plaintiff any cause, excuse, or provocation whatsoever for the making of said charges, or the circulation of such slanders, but that in all respects, since their marriage, he at all times conducted himself as a true and dutiful husband should do. That plaintiff has likewise charged defendant with being a morphine fiend, and with being addicted to the excessive use of morphine and other like narcotics; that she has uttered and put forth slanderous and untrue statements to the effect that he was a morphine fiend, and addicted to the excessive use of morphine and other narcotics, and all with the purpose of injuring and wounding his feelings, to impair and if possible destroy his professional standing and reputation as a physician and specialist in the practice of the medical profession in Fargo. That the making of such charges and slanders was without excuse or provocation, and that the same were utterly and wholly false and untrue. That by reason of the-making of such charges, and the putting in circulation of such slanders, plaintiff has inflicted upon defendant great and grievous bodily and mental suffering. That on or about November 22, 1906, without the slightest previous warning of her intention so to do, plaintiff gathered up her per
The prayer of the answer is: “(1) That the complaint of the plaintiff herein be dismissed. (2) That a final decree be made herein, granting unto defendant an absolute divorce from the plaintiff. (3) That the custody of the minor children, Bruce and John, be awarded to this defendant. (4) For such other and further relief as to the court may seem meet and proper.” To such counterclaim a reply was served, admitting: “That she has stated in her complaint in this action that the defendant has been guilty of habitual intemperance in the use of morphine and other narcotic drugs, and is and has been addicted to the use.of morphine as in said complaint alleged; reference thereto being had.” And also: ‘‘That on or about the 22d day of November, A. D. 1906, she left her home, taking with her her two children, Bruce and John, and that she upon the same date commenced this action by the service upon the defendant of the summons and complaint” — but specifically denying the other allegations, both as to extreme cruelty and desertion.
We have thus fully set forth the various contentions of these parties as disclosed in their pleadings, as we deem it necessary to a clear understanding and a proper disposition of the case.
We will first consider the questions presented on defendant’s appeal. Certain questions are raised and presented- by separate briefs upon the judgment roll proper. These need not be considered, in view of the conclusions reached on the other features of the appeals. Nor, for like reasons, need we notice plaintiff’s preliminary motion to strike from the record certain uncertified docu
The argument that causing the judgment roll proper to be filed in this court before the settlement of such statement evinces an election by defendant to submit his appeal on such judgment roll alone, is, in view of the record, manifestly erroneous, as is also the argument that this court could not, in the absence of good cause shown, remand the record to the lower court, as was done. The latter contention is sufficiently answered by saying that it was wholly unnecessary that such record should have been remanded. The trial judge was clearly in error in exacting this as a condition
This brings us to the merits on defendant’s appeal, in the consideration of which the question presented will be classified into two general branches: First, those relating to the correctness of the lower court’s findings and conclusions as to the plaintiff’s second cause of action, namely, extreme cruelty; and second, those findings and conclusions relating to defendant’s counterclaims alleging extreme cruelty and willful desertion on plaintiff’s part. In the retrial of these issues we are to be governed by certain general, but well-settled principles of law. The party having' the burden of proof upon any issue must establish the truth of the fact or facts alleged by clear and satisfactory evidence. Before a court will be justified in dissolving the sacred marriage relation, and thus visiting upon the innocent offspring the undeserved punishment of being deprived of the happiness and comfort of the home life, the party seeking to sever such relation should bring himself or herself clearly -within the provisions of the statute. As well stated by Mr. Nelson, author of the 'article on Divorce in 9 Am. & Eng. Enc. Law, 728: “The state permits the dissolution of marriage only where the purpose of the relation has been defeated by grave and serious misconduct. Such misconduct must, on an ' application for divorce, be established by competent evidence of a full and satisfactory character.” Another text-writer expresses the same general principle as follows: * * * Public policy, good morals and the interests of society require that the marriage relation should be surrounded with every safeguard and its sever
In the light of these general principles we proceed to a consid- . eration of the evidence relating to plaintiff’s allegations of extreme cruelty, upon which the judgment appealed from was rendered. In view of the great mass of testimony it is, of course, entirely out of the question, for us to review the same at length in this opinion. We can only, in the most general and cursory manner, refer to it. Nor would it serve any useful purpose to do more, as each case necessarily stands upon its own peculiar facts.
The parties were married at Fargo on January 31, 1903, and lived together until November 22, 1906 — 3 years and 10 months— and, as a result of such marriage, three boys have been born, as heretofore stated, all of whom are now in the custody of the plaintiff. At the time of the commencement of the action, November 22,
It is asserted that defendant commenced his course of abuse and ill treatment of plaintiff immediately after the marriage, and while they were on their wedding tour. In addition to the many accusations made in the complaint the plaintiff narrates in her testimony a great many more, to the most important of which we will refer. She would have the court believe that immediately after the marriage a radical-change came over defendant; that instead of a tender, loving and affectionate husband he almost instantly commenced towards her a course of gross abuse and ill treatment, without any apparent motive, and which abuse and ill treatment continued almost continuously throughout the period that they cohabited together. She even charges him with meanness, stinginess, and a lack of due consideration for her comfort and happiness, antedating the marriage, in providing an undesirable, poorly ventilated,
Again, she testifies that: “He didn’t pay any attention to me at all on that trip. When I showed him any affection when we were alone in our stateroom, he would push me away from him and shake me off. If I took hold of his hand, he would shake my hand away.” A little later she testified, “I was very unhappy all the way through the trip.” At Jerusalem she asked the guide to purchase for her a little Bible bound in the wood of the olive tree, which he purchased, and she says: “I had a dreadfully unhappy time with Dr. Rindlaub because I spent $2.50- for that Bible. He walked the floor he was so white.” Just before reaching Constantinople she was confined to her bed five days, and she swears that during that time: “He left me entirely alone. I was very de
She details another unhappy occurrence at Cologne,, in narrating which she says: “Dr. Rindlaub always belittled everything I did and everything I was all along the trip. He was constantly making me feel that I was very poor in a money way. * * * He used to do it mostly by insinuations. He often referred to my lack of education, my poor intellect. I could not pack his things as he wanted them packed.” During such quarrels she says that defendant, in effect, accused her of marrying him for his money, whereupon she threatened to go home and leave him, and that she meant it. She also complains of his alleged refusal to take her to any opera or theater while in Paris. On the return trip she says his treatment was about the same. When asked to sum up in a general way how defendant’s demeanor towards her was on this entire trip, she answsred: “It was very indifferent, but it was more than that. He made me feel that I was so far beneath him in every way; that I was deficient in every womanly quality. She says she believes she saw him taking morphine twice on their return trip. They returned to Fargo some time in May following, and shortly thereafter took up their residence in what she designates as a small house without modern conveniences, and she testifies that during that summer defendant was very indifferent to her. She testified to sleeping on the porch two nights during that summer because she could not endure sleeping in the house. She says he stayed out nights a great deal, and “he used to tell me it was none of my business where he went; that was his usual answer, or else ignoring the question and simply sneering in my face.” She says: “I went without help from before Thanksgiving until after Christmas. I was without help most of the time.” She complains that the doctor compelled her to burn lignite coal, which was kept In a shed out by the alley, and was in large chunks, which had to 'be chopped, and she had to do this work and build the fires.
In the autumn of 1903 she sent for her father, and she says: “I wanted to go home. * * * I had endured things as long as I could, and Dr. Rindlaub told me that it was hell to live with me.” Pier father succeeded in persuading her to remain and try once more, but she says things went on after that just about as they had been going before. “Perfect indifference! I was sneered at,
Plaintiff makes mention of a luncheon which she gave in hon- or of defendant’s mother, and she says: “Instead of being pleased he was furious about it, because he said it threw Dr. Elizabeth and Julia (his sisters) in the shade; they were giving receptions with us, and he said it was a very selfish thing for me to do.” And she goes on to say that the doctor’s relations at such receptions had a “sneer on the face of every one” every time she spoke. She also testifies that defendant told her she lied when she disclaimed any intent in giving such party to “throw Dr. Elizabeth and Julia in to the shade.” She recounts a scene just after the birth of the second child, in which she says as the defendant was going out of her room that night “he laughed and screamed just as I had, and mocked me just as I had screamed, very ¿bud, looked at the nurse, and laughed.” She also says: “He called me a damned liar on all occasions.” She narrates trouble between them over certain ladies, referred to in the record as ladies numbered 2 and 3, with whom they both, and especially the defendant, were on very intimate, friendly and social relations, and she speaks of a conversation regarding certain gossip on account of the doctor and these ladies over attentions shown them by him, and she refused to tell where she heard it, and she ' testifies: “He said that this gossip was absolutely groundless, that I had made it up entirely, of course calling me a liar and a sneak and a coward, and I was stabbing people in the dark.” She says she after-wards put her arms around him and said: “.‘Jack, don’t you love me now?’ Pie pushed me away. When he did that I said, ‘You know I don’t believe that you ever did anything wrong’ Q. Why did you tell him that? A. I didn’t believe that he had done anything criminally wrong. * * * That same night I * * * told him the same thing. I said, ‘You know I don’t believe that you have ever done anything criminally wrong.’ ”
On cross-examination plaintiff was asked if she had fully narrated the story of her trouble, to which she answered, “I have not .told a hundredth part.” And she was also asked, “Pías Dr. Rindlaub no virtues?” to which she answered, “I couldn’t find any, and I lived with him four years.” The latter statement was somewhat modified thereafter. From the foregoing it will be seen that the picture, figuratively speaking, that plaintiff has painted of her husband is- of the darkest hue. Many of the charges are very serious, and, if true, stamp defendant as a most villainous scoundrel.
Plow stands the proof? In answering this question we shall apply well-recognized tests in weighing the testimony of the various witnesses, and if any of them have exhibited an inclination to color or to exaggerate the facts, or have been successfully impeached as to material portions of their testimony by other credible evidence, either direct or circumstantial, their testimony will be given such credit only as in view of such facts it appears to us it is fairly and justly entitled to.
Regarding the incidents which took place on the steamer just before they sailed for the Old World, it will be remembered that plaintiff positively testified that defendant left her alone for about an hour before they sailed, and she could not find him, and she says, “We sailed before I knew whether he was on board or not,” and she further says, “Of course, I felt very much worried and filled with anxiety, and felt very much neglected just then.” She positively denies that she told Major Darling that defendant was down writing a letter, but Major Darling testified: “We went on board, and I found Mrs. Rindlaub on the upper deck, * * * and I * * * asked her where the doctor was. She says, ‘He is below writing some letters.’ I hunted him up, and found him there, and he says he will be through in a few minutes and be up on deck, * * * and we went ashore and very soon the boat pulled out. We stood on the end of the dock * * * as the boat pulled out into the stream, and Mrs. Rindlaub and the doctor were up on the deck and waved their hands to us; I saw them there.” Regarding defendant’s treatment of plaintiff while on this wedding trip Dr. Ring and Rev. Dalzell both disagree with plaintiff’s story. Dr. Ring testified: “Q. Well, was his demeanor towards her that of indifference, Doctor ? A. I think not. Q. How was he— was he pleasant ? A. I think he was; I never saw him otherwise, in fact, in the times that I saw him.” Rev. Dalzell: “Q. What would you say as to the conduct of Dr. Rindlaub as being lacking in attention to his wife, as they traveled together in the car, which an affectionate husband would display towards his wife? A. He seemed solicitous for her welfare and comfort. Q. In your shopping in company with Dr. and Mrs. Rindlaub what did you find to
Plaintiff positively denied that she ever stated to the witness Sundberg, or any one else, that defendant had had criminal relations with the lady known in the record as No. 3. She also posi
The 'following quotations from the written correspondence tend to throw much light upon the real domestic relations of these par- ■ ties, and furnish unmistakable proof that plaintiff has, to say the least, greatly exaggerated the facts regarding defendant’s alleged brutal treatment of her. In October and November, 1903, plaintiff expressed herself in letters to the defendant as follows:
“Jack, my dearest: * * * Even though I can do so little fm you, it is a great comfort to be where you can speak to me if you do want anything when you are ill. I hope that I may hear from you to-morrow or Sunday for I have worried about you a great deal, my sweetheart.”
“My darling: * * * Whatever other worries and cares you have had, we have really had each other and have been happy in each other, have we not? * * * You must not mind if I am a terrible baby about being away from you for it is only because I love you so much and surely you want me to love you. * * * With all my love, Maie.”
*379 “Mine Libre: * * * I am heartless enough to be glad, dear, that you will miss me, for I miss you very, very much, but I hope that you may be comfortable and happy and that the house may run quite as I should wish to have it. * * * With a heart full of love, Maie.”
“Always remember Jack that I love you very dearly and want so much to make you happy in all things, and do hot let people say things to you which make you doubt me. We must learn to trust and believe in each other, my sweetheart, and then we will always be happy. Most lovingly yours, Maie.”
“It is just because people are jealous of your success that you have these things to meet. They do not realize what a splendid, conscientious darling' you are, and they cannot hurt you, my boy; can they? * * * You have been a darling to write to me so often and I love you all the more (if I possibly could) for doing so. Most affectionately, Maie.”
“I have wondered so many times since you left nye how wives can go away from their husbands and stay for months, I never dreamed that I could miss a person so much, and I think of you by day and dream of you by night, my own darling. How happy we will be when we are together again. Most lovingly yours, Maie.”
On November 9, 1903, defendant wrote plaintiff: “My precious one-: * * * I am going home now, but it isn’t much like home without you darling. I long to see and take you in my arms, but it won’t be long now. The days will soon fly by. With all my love, Jack.”
In March and April, 1905, plaintiff wrote defendant: “Jack, darling: * * * Bruce and I cannot bear to sit in the den now that you are gone. It seems the loneliest place in the house and I seldom go in there at all, especially in the evening, for that is where we have our happy times together. Do we not, dear? * * * Most affectionately yours, Maie.”
“Jack, my darling: You cannot think how happy your sweet letter made me and I am glad that you feel the baths may help you. * * * Bruce is getting so smart. When he had his apple today he took each piece of skin out of his mouth and gave it to me It was too cunning for anything. All day to-day he has been saying, ‘Pa; Pa; Pa; Pa;’ I know that he misses you, too, dear. * * * With a great deal of love, affectionately, Maie.”
“My darling Jack: * * * We came home quite early and Oh, darling; you can’t think how lonely the house seems, yet I am, just as glad as I can be that you are to have such a nice rest and I feel sure that it will do a great deal of good. * * . * So you see, dear, your wife and little son are beautifully taken care of, thanks to your generosity in letting us have these people about us. * * * With all my love, affectionately, Maie.”
“My darling boy: * * * Darling, your letters make me very happy. I do think that you and I are nearer and dearer to one another every day that we live and how beautiful to have it so. * * * With a heart full of love, and hoping that you are ever so much better, believe me, Your affectionate wife, Maie.”
“My darling boy: * * * It is after nine, far past my bedtime, so good night dear, I wish I might have a good night kiss and to sleep with my hand in yours, darling. Nearly every night I dream of you and it is so hard to wake up and realize that you are away.”
On August 3, 1905, in a letter written by plaintiff to defendant’s brother, plaintiff expresses herself as follows: “I have not been feeling as well lately but I must expect that of course. Jack is so sweet and considerate, however, that it helps a great deal over this most trying time.”
Many letters from defendant to plaintiff are in the record, all of which contain very affectionate expressions, and none of which disclose the slightest intimation of any domestic unhappiness. It is not only difficult, but impossible, to reconcile these written evidences of affection with the testimony of plaintiff. The attempted explanation by her of her letters is very unsatisfactory, and, furthermore, defendant’s letters to her are equally as convincing as hers in refuting the fact that any such unhappy. relations existed as were
The witness Florence Nugent, an intimate girlhood friend of plaintiff, and who visited frequently at the Rindlaub home, gave it as her opinion that plaintiff was very unhappy, although, as stated by the witness, the plaintiff “never has said anything to me at all of any trouble.” At times when she was present she says defendant was very indifferent, and didn’t have much tO' say. Among other things, she testified: “Q. What was his manner to Mrs. Rindlaub whenever he spoke to her or answered any inquiry from her? A.
The witness Olson, a coachman for the defendant for about six months in 1904 and 1905, and whom the testimony shows was discharged from such employment by defendant, gave the following testimony relative to alleged cruelty: “Q. Did you use to observe the actions of Dr. Rindlaub toward his wife, from time to time? A. Why, he was always smiling and good-natured when there was anybody around. When nobody was around, he would speak up kind of nervous and cross. Q. Was that his general conduct when other people were not around and in sight and hearing? A. Yes. Q. For how long a period did you notice that? A. Oh, for a week or two. Q. How did he act towards his wife? A. Why, when I generally seen him he was kind of smiling, and so on, and sometimes Mrs. Rindlaub had red eyes, and looked like she had been crying.”
The witness All's. Grant — a very intimate friend of plaintiff and her parents for many years — gave testimony similar to that of the witnesses Florence Nugent and Miss Mann. She also details certain conversations with defendant in the spring of 1907, in which defendant had asked her to aid in bringing about a reconciliation, but that, owing to certain statements or insinuations by the doctor regarding certain statements he claimed Mr. and Airs. Douglass had made concerning her, she did nothing. On cross-examination this witness states that she communicated to plaintiff and her mother the substance of these conversations had with the doctor, and that there was no expression of any wish upon their part for reconciliation, and, as far as she could understand, the plaintiff and her parents were all three bitterly opposed to a reconciliation.
The witnesses Etta Hill and Mrs. Morris gave depositions to the effect that they were passengers on the steamer from Hoboken to Cairo, and they testify to their conclusions that' plaintiff was unhappy, and that the doctor seemed indifferent and negligent to
The witnesses Mrs. Lasson and Mrs. Clark merely testify to Bruce’s actions in 1907 in not wanting to accompany his father from the Douglass home, and they throw no light upon the issues involved.
The witness Mary Kingsley merely testifies that she was at the Haggert wedding, and overheard defendant ask plaintiff if she could not walk home. The proof shows that plaintiff was attired in a delicate gown, and the walks were muddy, and this incident is relied on as a circumstance showing extreme cruelty on defendant’s part.
The witnesses Irene Clark and Hazel Hull merely refer to Bruce’s actions in 1907 in not wanting to leave the Douglass home to visit his father.
The witness Dickinson — who is an employe of the steamship company — testified by deposition as to the location of the cabin which defendant engaged.
The witness Frances Sill testified by deposition that she saw Mrs. Rindlaub carrying a very heavy bag while they were going to the train at Naples, and she says the doctor was walking beside her and did not carry anything, and she further says: “He was pale and haggard, he was always surly, very surly and very disagreeable.” “Q. Do you know how far it was she carried that heavy bag? A. I should think it was the distance of perhaps less than two of our blocks.” Later she testified: “Q. What did you see as to the manner in which he acted toward her at the various times that you saw him on that trip? A. I should say that he was very disagreeable, very uncouth, and rather an unusual man; especially we were very much surprised to learn that they were bride and groom. I had supposed that they had been married a long while, and that he was very much broken down in health, and 'in every possible way he was a man that was completely broken clown I should say; he was very disagreeable.” .
The witness Johnson — a very intimate friend for over forty years of plaintiff’s father — called at the Rindlaub home in company with plaintiff’s father four days prior to the commencement of the
Edna White testified by deposition to meeting and forming an intimate acquaintance with plaintiff while in Alaska in the fall of 1906. She testifies to plaintiff’s nervous condition while there. It is apparent from her testimony that they became chums, as they were together most of the time, and occupied the same stateroom while going from Marble Creek to Ketshikan and from the latter place to Juno.
The witness Mrs. West testified that in June, 1906, she met the parties at Detroit, Minn., and defendant seemed to be rather cold and indifferent, and that there was very little conversation between them. This witness was a patient of defendant, and stayed at defendant’s home in June, 1906, while receiving treatment from defendant, and, among other things, she testifies as follows: “Q. Did you observe, while there, the treatment of Mrs. Rindlaub by her husband? A. Yes. Q. State what it was; whether it was kind or otherwise? A. It was not kind; he seemed to be rather cold and indifferent. Q. What did he say or do? A. I could not say; there was not very much said. Q. Do you mean by that that he seldom talked to his wife? A. Seldom, while I was there. Q. What is the fact as to whether he talked to his wife during mealtimes? A. There was very little conversation. * * * Q. What is the fact as to whether during your stay in his house Dr. Rindlaub found fault with his wife? A. I do not remember hearing him fiind fault with his wife, except once for not sending the horses for me. Q. What did he say? A. Nothing objectionable. Q. But did he scold her? A. It was very like scolding. Q. When Dr. Rindlaub talked to his wife, what was his manner, as to whether it was cross or good natured? A. Cross; I should have said cold. Q. What is the fact as to whether or not Dr. Rindlaub frequently talked with his wife? A. I do not know whether he talked with his wife or not. Q. Did he talk with her much in your presence? A. On commonplace things.” On cross-examination she testified: “Q. This coldness or unkindness was in the form of indifference to her? A. More in manner than speech. Q. He said no unkind words in your presence? A. You would not call them unkind. Q. It was simply
The next witness — Ella Berg — was a nurse girl at the Rindlaub home from October, 1904, until June, 1905. She was asked' to state how Dr. Rindlaub acted towards his wife when they were alone, to which she answered: “I can’t hardly give any answer that will be anything.” She then testifies: “Q. Did he treat her at such time affectionately or Goldly? A. Coldly, I think. Q. When they were at the table, at their meals together, did or did not D.r. Rindlaub have any conversation with his wife, and what was his treatment of her at that time? A. Yes; he had conversation with her and it was all right as far as I heard.” She corroborates to a certain extent the plaintiff’s testimony regarding the incident of her going into the guestroom with her baby on a certain occasion, and remaining there two nights and a day, although the witness does not remember how long she stayed in there. Her testimony is of
The record discloses that much of the testimony of plaintiff’s witnesses was procured by plaintiff’s father, with whom the witnesses talked prior to giving their testimony, and it is but natural that he would put forth every effort to procure testimony as favorable to his daughter as possible. Like efforts may have been employed in procuring testimony in defendant’s behalf. These are matters which we have duly considered in weighing the testimony of the various witnesses.
Space forbids a more extended review of the evidence bearing upon this feature of the case. Suffice it to say that in our judgment plaintiff has most signally failed in proving the truth of the facts relied on to establish her second cause of action by that degree of proof exacted in cases of this character. It is a signifiicant fact that, with but a few exceptions, all the servants, nurses, and other witnesses having the best opportunities of acquiring knowledge of the facts are arrayed against plaintiff upon the issue of extreme cruelty. It stands out as an established fact in the case that to plaintiff’s knowledge defendant is and was, during all the times referred to, afflicted with an incurable malady, and at frequent intervals, subject to unendurable pain, necessitating the use of narcotic drugs to relieve such pain. This fact, no doubt, furnishes some explanation for much of the demeanor of defendant as narrated by plaintiff and her witnesses; and yet, in the light of his said affliction, there has been apparently no inclination shown by plaintiff to exhibit the least degree of leniency or forgiveness. That there was more or less domestic troubles is no doubt true, but this is not an unusual coincidence in married life. The absence of these are the exception — not the general rule — as common experience teaches us.
From an examination of plaintiff’s testimony we are impressed with the belief that the chief aim of her counsel throughout the ■trial was, not so much to establish extreme cruelty, as to lay a foundation upon which to ask a divorce upon her first cause of action, to-wit, habitual intemperance. Such object appears from the testimony to be uppermost in the contemplation of plaintiff and her counsel throughout the proceedings.
In concluding what we have to say upon this branch of defendant’s appeal we feel constrained to differ with the learned trial court
This brings us to a consideration of the second branch of defendant’s appeal, namely, his counterclaims for a divorce from plaintiff on the grounds of extreme cruelty and willful desertion. In considering this feature we shall asume that the trial court properly denied any relief to plaintiff on her first cause of action, the correctness of which holding we will consider later. Does the evidence warrant findings of extreme cruelty or willful desertion on plaintiff’s part? This question was answered in the negative by the trial court, although that court expressly found as a fact “that plaintiff did charge defendant with being criminally intimate with other women.” And also: “That the ladies with whom plaintiff accused the defendant of having criminal intimacy were and are of the highest standing in the city of Fargo, and are of unimpeachable character, and in every way above suspicion.” The learned court evidently took the position, which is not without some support in the evidence, that defendant’s relations with these ladies were not wholly free from criticism, and that he is not entirely blameless in the premises. In other words, that there are mitigating circumstances in plaintiff’s favor sufficient to warrant the denial to defendant of any affirmative relief under his first counterclaim. While, for like reasons, we have concluded not to interfere with the trial court’s disposition of this ’ feature of defendant’s appeal, we deem it proper to say that it is established by the record beyond question, and to our entire satisfaction, that plaintiff openly accused defendant of criminal intimacy with another woman. This is shown by the witneses Sundberg, Mrs. Kitely, and Dr. Darrow, and while disputed by plaintiff, she does not deny that she accused him of intimacy with such women, but denies that she ever, in effect, charged criminal intimacy. We cannot believe that all these three witnesses, even though strong partisans in defendant’s favor, deliberately falsified regarding plaintiff’s statements to them as above referred to. What possible motive could they have had for so doing? Plaintiff expressly disclaims any belief as to the truth of such accusations, but on the contrary she and her witness, Mrs. Grant, as well as every person expressing any opinion on the subject, unequivocally swear that the character of this lady, whom the witnesses Sundberg, Mrs. Kitely, and Dr. Darrow positively swear
In the light of defendant’s serious physical condition, of which plaintiff was fully aware, it was doubly cruel on plaintiff’s part to treat him as she unquestionably did treat him, riot only in this, but in many other respects. That plaintiff falsely accused defendant of assault and battery against her person by striking or kicking her while she was large with child is even admitted by plaintiff, and this, above all other charges, would surely bring defendant into bad repute and public scorn. The evidence also discloses that, while defendant, who, as before stated, was afflicted with an incurable, and at times an unendurable malady, was practicing his profession, when, as his physician says, and as the lower court in effect found, he should be enjoying absolute rest and quiet, and was furnishing plaintiff a home with all the comforts and luxuries she could desire,
Upon defendant’s last counterclaim, which charges plaintiff with wilful desertion on November 22, 1906, we are inevitably forced to the conclusion that defendant is entitled to the relief prayed for, unless plaintiff has successfully established her first cause of action, which we will hereafter consider. It is admitted that plaintiff on said date took their two chidlren, Bruce and John, and went to her parent’s home, where she has ever since resided, and it is perfectly apparent that it is and has been, at all times since,- her full intention never to return to her husband. .Not only this, but it is undisputed that she took her departure as aforesaid without the slightest previous warning to defendant, and with a deliberate purpose of commencing this action, which she and her father, for many months
This conclusion brings us to a consideration of the merits of plaintiff’s appeal. Such appeal challenges the correctness of the trial court’s findings and conclusions upon the issue of defendant’s habitual intemperance in the use of morphine. Owing to the length already of this opinion we shall dispose of this feature of the case as briefly as possible. Defendant is charged with the use of morphine, and other like narcotic drugs, to such a degree as to disqualify him a great portion of the time from properly attending to business, and which alleged habitual intemperance has inflicted upon plaintiff a course of great mental anguish. While it may not be material from a legal standpoint, we think the record fully justifies the assertion that but slight, if any, effort was ever put forth by plaintiff to save her husband, for whom she professed such devoted affection, from acquiring the terrible habit of which she now complains; her apparent desire being to secure evidence which would convict him of being guilty of such habit. She manifested no disposition to forgive and forget. The contrary is true of defendant, but his overtures for reconciliation were spurned by her and her parents.
Upon this appeal counsel for plaintiff contend for a reconstruction of our statute — section 4054, Rev. Code 1905 — which will entitle plaintiff to a divorce, notwithstanding the fact, if it be a fact, that the morphine habit was caused by reason of the necessary use of such drug to alleviate pain and unendurable suffering. We do not thus con'strue the law, and in our opinion such a construction would do violence to the statute. If such a habit is reasonably and necessarily caused by conditions over which the victim has no control, it would be manifestly harsh and unreasonable to subject such party to such undeserved punishment. It would,, in effect, be inflicting punishment upon the innocent. Such a condition is no less innocent, from the standpoint of the victim, than insanity. Both result from disease. We shall not attempt a review of the evidence
Our conclusions upon the whole case are:
First. That the judgement appealed from, is so far as it grants to plaintiff a divorce, be reversed, and that a judgment be entered in defendant’s favor dissolving the marriage relation upon the grounds alleged in his last counterclaim.
Second. That such judgment be modified so as to provide: That the custody of the children Bruce and John shall be, until the further order of the court, awarded to defendant, subject to the following conditions: That defendant shall not remove such children from this jurisdiction without permission of the court first obtained, and that plaintiff shall be permitted, during each afternoon between the hours of 3 and 6 o’clock, to visit said children at defendant’s residence, when they are not at school, and that during the months of June, July and August, plaintiff may have the custody thereof, subject to defendant’s right to visit them at least once each week for the period of one hour, and, in addition thereto, to take them to his home each Sunday afternoon between the hours of
Third. Also, that until the further order of the court the custody of the minor child, Newhall, be awarded to plaintiff, but defendant shall be permitted to visit such child at least once each week, for the period of one hour.
Fourth. For the support, maintenance, and education of such children defendant shall pay to plaintiff the sum of $150 per month, payable each month in advance, during the times they are all in plaintiff’s custody, and at other times the sum of $50 per month for Newhall, payable as aforesaid.
Fifth. The homestead, consisting of the south 95 feet of lots 11 and 12, in block 33 of the original town site of the city of Fargo, is hereby assigned to defendant during his life, or as long as he continues to maintain it as his home; he to keep and maintain the same free of incumbrances of every kind or character, and at his death, or before, if he should intentionally abandon such home, the same shall become plaintiff’s absolute property.
Sixth. That the conclusions of the tidal court numbered 9 and 10, which relate to the rights of the respective parties to certain personal property, including the wedding gifts, are hereby adopted unchanged as conclusions of this court, the judgment in this regard to be in conformity with the judgment heretofore entered by the district court.
Seventh. The judgment of the district court, in so far as it awards to plaintiff attorney’s fees and the costs and disbursements in that court as finally taxed and allowed', is affirmed. There is hereby also allowed to the plaintiff, for suit money and attorneys fees in addition to the sums heretofore 'allowed by this court, the further sum of $1,200 and the payment of such allowances for attorney’s fees and suit money shall be made by defendant to plaintiff within 30 days after the remittitur is filed in the district court. Aside from such allowances no costs or disbursements in this court shall be allowed to either party.
The district court is directed to vacate its judgment herein, ana to enter a judgment in conformity with this opinion.
Rehearing
On Rehearing.
(on denying rehearing). The petition for rehearing is denied, but in denying same we deem it proper to give a brief state-' ment of our reasons for so doing.
The first ground upon which a reheairng is prayed for is that the time during which plaintiff was engaged in prosecuting her action cannot be considered in computing the statutory period of desertion, entitling defendant to a divorce. The history of this litigation, as disclosed by the record, furnishes a conclusive answer to such contention. Conceding the correctness, as a general proposition, of the rule now urged, but without deciding the same, it is, to our minds, entirely clear that plaintiff should not be permitted at this late date to invoke such rule. Such point is raised for the first time in her petition for a rehearing. It is a new point in the case, and has no place in her petition. Furthermore, it has been waived. At the time the case was called for trial in the district court plaintiff’s counsel asked and obtained leave to serve and file an amended complaint. Thereupon defendant was permitted, by consent, to serve and file an amended answer, wherein the second counterclaim, alleging desertion on plaintiff’s part, was incorporated as a supplemental cause or ground for divorce. Plaintiff’s counsel characterized such pleading as a supplemental, rather than an amended answer, stating: “That is a supplemental answer, based upon a * * * cause of action for divorce arising since the filing of the other answer. We have no objection to the amended ■answer, if your honof please, but we desire the record to show that it was served as of to-day before the commencement of the case.” Subsequently a reply was served, putting in issue the allegations of such supplemental answer and crossbill. Throughout the entire litigation, both in the district and 'Supreme courts, not even an intimation was made by plaintiff’s counsel that they relied, or intended to rely, upon any such point in defense of such supplemental cause
Counsel assert, with apparent confidence in the correctness of their position, that the majority opinion, in effect, overrules the cases of Jasper v. Hazen, 4 N. D. 1, 58 N. W. 454, 23 L. R. A. 58, Dowagiac v. Hellekson, 13 N. D. 257-265, 100 N. W. 717, and Ruettell v. Ins. Co., 16 N. D. 546, 113 N. W. 1029, upon the question of the weight to be given the findings of the trial court. Counsel are clearly mistaken. Jasper v. Hazen arose long prior to the enactment of our statute providing for trials do novo in this court, and the other cases relied on were law cases, and were not appealed under the so-called Newman statute. Hence such cases are in no respect in point here.
With reference to that portion of the decree relating to the custodjr of the children nothing new is presented in the petition requiring further notice. We have, however, carefully reconsidered this feature of the case, and in the light of all the facts we see no reason at this time for changing our former conclusions. This court will retain jurisdiction of the case in the future to the extent of entertaining applications for a modification of the judgment, and will, on application and sufficient showing, direct the district court to make any such changes or modifications in the judgment regarding the custody, support, and education of the children as in the judgment of this court may be deemed proper and for the best interests of such minor children.
But one other matter referred to in the petition will be noticed. At the end of the rehearing petition, and as an alleged newly discovered ground for a rehearing, counsel for plaintiff, in' their great zeal for their client’s cause, make the following somewhat remarkable and unwarranted statements: They charge, in effect, that one of the members of this court who participated in the decision of the case was actuated by implied bias in agreeing to the opinion and decision. Our attention is directed to exhibit 103, which counsel characterize as the “free list of the defendant,” or, in other words,
The petition is denied.
Note — Wife’s false charges of husband’s infidelity, excited by his conduct, although producing suffering, will not warrant a divorce. McAllister v. McAllister, 9 N. D. 324, 75 N. W. 256. Violent and abusive language by husband to wife producing anger on .her part, does not necessarily inflict grievous mental suffering. Mahnken v. Mahnken, 9 N. D. 188, 82 N. W. 870. Infliction of grievous mental suffering, producing no bodily injury, may warrant a divorce. Id. As to divorce for extreme cruelty. DeRoche v. DeRoche, 12 N. D. 17, 94 N. W. 767. Habitual utterance of profane language and obscene stories by wife to husband and others in his presence, where by reason of husband’s mental and other characteristics he is caused humiliation and suffering, is cruelty. Mosher v. Mosher, 16 N. D. 269, 113 N. W. 99. So continuous fault finding, threats and other acts intended to aggravate and annoy. Id.