Saterlee v. Saterlee

28 Colo. 290 | Colo. | 1901

Mr. Justice Steele

delivered the opinion of the court.

The principal errors assigned and argued are: First, that the verdict and special findings, as first presented, should have been received by the court; and that the court erred in permitting the jury to change the special findings when once completed. Second, that the court erred in entering a decree for plaintiff finding the defendant guilty of extreme cruelty. Third, that the court erred in refusing the defendant alimony.

It was the duty of the court to direct the jury, it not having separated, to return a verdict upon the cross-complaint; and the jury whs at liberty to change its verdict or special findings at any time before they were received by the court and before it had separated. Ward v. Ward, 25 Colo. 33.

The instructions given by the court were full, fair, and impartial, and were more carefully considered than is usual in a divorce suit. No error is assigned concerning them; and the learned judge who prepared them is to be commended. But, upon a careful review of all the testimony in the case, we are of opinion that the plaintiff was not entitled to a decree. He alleged, in substance, that his wife threatened, and attempted, to take his life, and that she charged him with being criminally intimate with other women. The charge of threatening to take his life failed utterly. Giving to the statement made by the wife concerning the husband’s infidelity the strongest construction against her, it was a mere intimation, and was not uttered in anger nor under circumstances tending to injure the sensibilities of her husband. To charge a husband with infidelity, becomes an act of cruelty only when wantonly or maliciously made. Such accusations, though they may not be true, if not made through hatred or ill-will, but in good faith and for the purpose of inducing the husband to observe his marital duties, are not grounds for divorce. A wife has the right, and it is her duty, to call her husband’s attention to what she may have heard affecting his conduct; it is his duty, if not guilty, to endeavor to convince her of his innocence. The plaintiff testified that, “For the last two or three years, about half the time there was no conversation between us, — sometimes two or three weeks not a word spoken.” It does not appear that the wife failed in her duty in this regard. For aught that appears in the record, the failure to carry on conversation was due wholly to the husband’s neglect of duty. But, even if she had failed to speak to her husband for a week or two at a time, the record shows and the plaintiff admits, that he took the Keeley cure because he “had to,” and that he was very drunk on several occasions, and that he was in the habit of drinking and staying away from home until bed-time because of the conduct of his wife. The plaintiff’s witness, White, said that plaintiff was an habitual drinker, and that he induced him to take the Keeley cure because plaintiff was injuring his health. A married man who, for ten years of his life, has indulged in the habit of drinking and of coming home at bed-time in a condition incident to the degree of inebriety varying from the garrulous exhilaration of one only partially intoxicated to the sullenness of a sot, cannot expect his wife to show that affectionate regard for him which is his due under other circumstances, and cannot complain if she does not engage in conversation which she knows will terminate in a quarrel, Sensuality and drunkenness are accompanying vices; and an intimation such as the defendant is said to have made is not cruelty in any event, and it is surely not cruelty to intimate that a drunken husband is also sensual.

If facts are developed at the trial which make it inequitable or unjust for a divorce to be granted, the court must see to it that a decree is not granted. Ward v. Ward, 25 Colo. 33.

The plaintiff alleges that the defendant, on one occasion, drugged his coffee; and the jury found that fact, in its special findings, as one of the acts of cruelty. The act complained of did not appear to the defendant as of great consequence, because he lived with his wife a month afterwards, although he says he watched her after that. A witness called by the plaintiff said that defendant declared she had given “a dose” to her husband to break him of the drinking habit. In this light, the conduct of the defendant appears to be perfectly consistent with an innocent intent. One act of this character is not sufficient to entitle a party to a divorce; though one act of extreme cruelty will authorize a divorce, the statute requires that there shall be repeated acts of cruelty, and it means a continued ill-treatment. Of course if it had been established that the wife undertook to take her husband’s life by poisoning, that would be another case and sufficient ground for a divorce; but the testimony wholly fails to support any such contention.

Urging the husband to insure his life for her benefit is not a ground for divorce, and cannot be considered an act of cruelty.

For the reasons herein given, and because the testimony does not support the verdict, the judgment is reversed, with directions to enter an order of dismissal.

Reversed.