4 Wash. 118 | Wash. | 1892
Lead Opinion
The opinion of the court was delivered by
In this case the action for divorce is based upon alleged acts of cruelty, and it was entirely proper
A motion for a non-suit was made at the close of plaintiff’s testimony, which was denied. Technically a motion for a non-suit is not applicable to an equitable action (Code Proe., § 409), but treating this as a motion to dismiss, we find the alleged error, if any, cured by defendant’s proceeding with the case. To reap advantage from such a motion in equity the party must have stood upon it. Cattell v. Fergusson, 3 Wash. 541 (28 Pac. Rep. 751).
In case before us the wife charges the husband with maliciously accusing her of adultery and other unchaste conduct. He admits making the accusations, but denies the malice, and pleads affirmatively that in the face of his protest she received the visite and attentions of other men, particularly in his absence from home. Each side proved what might be termed a fairly good case, if either had been the complainant, except that the husband failed entirely to show reprehensible conduct on the part of his wife toward any but the one man particularly named in his answer. She gave him just and abundant cause for his jealousy, and he was brutal and indecent in his exposure of her faults. There wasno convincing proof thatshehad been criminally intimate with any man. She was certainly indiscreet in receiving the visits of a man other than her husband, as the testimony shows she did; but the man was introduced into his house by the husband, and these visits had been encouraged by the husband for three or four years before he made any objection to them. When he made positive objection they ceased, and had not been renewed up to the time this action was commenced, six or eight months after
The court below made the usual findings in cases of this kind, and while we might, if trying the cause originally, view some of the facts differently from the way they seem to have been regarded here, the presence of the parties is of so great importance in these cases that we ought not, where there is such a degree of doubt, reverse a decree. It is probable that nothing will ever happen to bring this husband and wife into-anything like amicable relations,and to reverse the decree might be merely to set them adrift, without hope of resuming the marital relation, perhaps to the injury of society and-the destruction of themselves and their children.
The division of their property was not unfair. The judgment is affirmed, each party to pay his or her own costs of this appeal.
Dunbab and Scott, JJ., concur.
Anders, C. J., not sitting.
Dissenting Opinion
(dissenting). — I cannot concur in the foregoing opinion of the majority of the court. In my opinion the proofs show that the plaintiff was as much at fault as the defendant, for while I am satisfied that the defendant was a person of somewhat suspicious and jealous disposition, and that by reason thereof he at times acted in an
I agree with the majority that such extreme cruelty as will justify divorce may be perpetrated without any physical violence. For a husband to wantonly and without cause accuse his wife of want of chastity, and persist in the same, would in an ordinary case be cruelty of the highest degree, but it does not follow that such conduct on the part of the husband would in all cases'constitute cruelty. There are cases where such actions on his part would not constitute cruelty, even where the wife was without fault. Whether or not it would amount to cruelty depends upon the effect which such words would have upon the wife. If a wife is possessed of intelligence in a high degree, and has, by education and associations, been surrounded by a refined and enlightened class, nothing would perhaps more seriously affect her mind, and through it her physical well-being,
In this case, instead of being satisfied that the actions of the husband were wanton and malicious, I am clearly satisfied that they were made in the utmost good faith, and that the husband really believed that he had cause for reproving his wife as he did. And in view of his good faith, I am not satisfied that his acts amounted to such extreme cruelty as would have justified a decreeof divorce even if the wife had been without fault. Jealousy, within reasonable bounds, is a desirable rather than an undesirable characteristic, and though a person is responsible for the proper control of that characteristic the same as any other, yet the want of control should be clear and absolute, and of such a nature as to make the life of the other party to the marriage contract practically unendurable before the court should visit it with such an extreme penalty as that of decreeing a divorce to the other party on account thereof.
The parties to the marriage relation are not the only ones interested in its maintenance. If they were it is possible that a divorce should be granted in this case. But for the protection of the family relation it has been thought wise by legislatures and courts to provide that the marriage relation when once entered into cannot be set at naught at the will of the parties. Such relation is considered a sacred one, and public policy demands that it should only be set aside for the gravest reasons. Thus it has always been held that however great the misconduct of one spouse, the