108 P. 1054 | Idaho | 1910
Lead Opinion
This action was instituted by the husband against the wife, praying for a decree of divorce on the grounds of cruel and inhuman treatment. The plaintiff alleged that the defendant for a couple of years pursued a course of abuse, nagging and hectoring the plaintiff, until she drove him to the verge of nervous prostration, and impaired his health both physically and mentally. The defendant answered, denying the allegations of the complaint. The case was referred to a referee to take the proofs and report the same to the court. The trial court heard and determined the case solely on depositions; and under the rule heretofore announced by this court it is incumbent on us to examine and weigh the evidence on appeal the same as if the case had never been passed upon by the trial court. (Roby v. Roby, 10 Ida. 139, 77 Pac. 213; Stoneburner v. Stoneburner, 11 Ida. 603, 83 Pac. 938.)
The trial court denied the plaintiff a decree of divorce, and this appeal is from the judgment and an order denying a
We shall not attempt to set forth in this opinion the evidence produced on either side of the case, nor shall we attempt to analyze the proofs offered. To do so would serve no useful purpose whatever, and to incorporate a statement of the proofs in this opinion would be of no interest or consequence to anyone. We shall content ourselves with stating briefly some of the conclusions that must inevitably be drawn from the record in this case.
At the time of their marriage the plaintiff, who is appellant here, was about fifty-six years old, and the defendant about forty-seven. They intermarried at Trenton, N. J., on September 25, 1902, and lived together harmoniously until about August, 1905. In the year 1905 the appellant was engaged in promoting an electric railway project between Lewiston and Grangeville in this state, and during the meanwhile the parties were residing at Lewiston. In August of that year, plaintiff and respondent, in company with respondent’s brother and his family, organized a camping party and invited a family named Twombley. The Twombleys were from Illinois. A few days after they went into camp Mrs. Spofford became greatly displeased over the conduct of her husband toward Mrs. Twombley, and remonstrated with her
.Some time after the Twombley-’ went east there came to Lewiston a Mrs. Monteith and her sister, Miss Wills, who became intimate with the Spofford family. Mrs. Spofford soon became jealous of her husband’s attentions to these women. The result of the wife’s jealousy of the attentions her husband paid to these several women was many protestations, lectures, and, as the husband testifies, hostile demonstrations on the part of the wife, often extending far into the night and disturbing his rest and peace of mind and breaking down his health. This, he says, became so bad andjtrying he could no longer endure it, and he accordingly left his wife and declined to live with her any longer.
Under the circumstances of this case, the acts proven against the respondent cannot be held to constitute extreme cruelty within the meaning of the statute. (Sec. 2649, Rev. Codes.) By this we do not mean to say that respondent’s conduct in this regard is commendable or that a man must forever endure it with patience. The appellant, however, has not been free from blame and censure. He has pursued a course of conduct toward other women which was calculated to arouse suspicions on the part of the wife and to kindle the fires of jealousy. It is fair to say that the record entirely fails to show that appellant has been criminally intimate with any of these women; it rather inclines us to the belief that he has not, but he has been indiscreet and unwise in his conduct, and he certainly owed it to his wife as well as to himself to “avoid the appearance of evil.” It is fully as essential to domestic happiness and tranquility that the parties
The wife in this ease is not a woman of rugged health. She was, on the contrary, of a nervous and excitable temperament. Her jealousy was easily excited. The attentions and courtesies paid by her husband to Mrs. Twombley, Mrs. Monteith and Miss "Wills, and a couple of other women whose names have appeared occasionally in the record, were liable to arouse her suspicions and anxiety; and this in connection with his apparent neglect of his wife at the same time was calculated to disturb the peace of the home. In the meanwhile, these several women were carrying stories back and forth between the husband and wife, were telling the husband various and sundry stories about the wife and the things she had said about his conduct and what she would do with reference to exposing and humiliating him, and also things he should have done or said. In the midst of this state of affairs it is not to be wondered if the wife should on some occasions so forget herself as to administer a rebuke to her husband and perhaps do and say some things which, standing alone, would appear cruel or wholly unjustifiable. It is true that such a course of procedure never improves the conditions; it rather tends to aggravate them. But that fact does not lessen the strain of human nature in the parties and their natural tendency to relieve their minds by words and acts. The party to the marital contract who by his acts and conduct thus invites a remonstrance, protest or demonstration from the other party to the contract must expect to exercise a degree of patience and forbearance which the law and good morals would not expect of him under more favorable circumstances.
“Whenever one has well-grounded suspicions,” says Mr. Justice Allen in Masterman v. Masterman, 58 Kan. 748, 51 Pac. 277, “That the other is bestowing his attentions elsewhere, and that he finds more congenial society with another than with his wife, the seeds of discord are sown, and the rancorous weeds of jealousy and distrust are sure to grow, and overshadow and wither the flowers of domestic felicity.
If we were in the business of advising matrimonial dis-cordants, we would tell this aged and doubtless well-meaning-couple that, in our judgment, neither one is free from fault, and that a mite of charity and a little forbearance and a portion of the courtesies and attentions they must have practiced in other days, mutually administered, would in their case adjust what is now only an aggravated case of jealousy induced by suspicious conduct.
After an examination of the whole record, we find no error-which requires a reversal of the judgment and we are satisfied that the trial court properly denied a divorce in this case.
The court by special order permitted typewritten transcript and briefs to be filed instead of printed transcript and briefs as required by the rules. We will, therefore, allow the respondent the sum of twenty dollars, which may be taxed as. costs for typewriting her brief. The transcript has been prepared by the appellant and the cost of that, if it has not already been paid, is a charge against the appellant. It is also ordered that the respondent recover from appellant the sum of $250 to pay attorney’s fees for services rendered on this appeal. This is in conformity with the practice heretofore pursued in this court. (Roby v. Roby, 10 Ida. 139, 77 Pac. 213; Stoneburner v. Stoneburner, 11 Ida. 603, 83 Pac. 938.)
Judgment affirmed, with costs in favor of respondent.
Rehearing
ON PETITION POR REHEARING.
A petition for a rebearing has been filed in this ease and is supported by a somewhat exhaustive brief and a review of the pleadings and evidence in the case. Counsel for the petitioners seem to think that the court has mistaken the allegations of defendant’s answer for evidence in the case. Counsel also devote some time in their petition and brief to a discussion of the rules of pleading, and the fact that under the statute affirmative allegations in the answer are deemed denied.
"We have devoted more than a week to an examination of a voluminous record in this case and to an analysis of the evidence introduced, and after doing so we reached the conclusion which has not been altered or modified by the petition and brief for rehearing. We have given more careful consideration to the evidence given by appellant himself than perhaps any other part of the record, and our conclusions rest perhaps more largely on the evidence given by appellant on direct and cross-examination than upon any other evidence in the case. It is doubtful, indeed, if the appellant’s own testimony as modified by him on cross-examination would be sufficient to entitle him to the decree prayed for. It has been said that “hard eases are the quicksands of the law,” and we are forcibly reminded of the significance of this epigram by the facts and circumstances of this case.
Counsel assert that the appellant will not live with respondent any more even though he does not procure a divorce. That may be true, but for that condition we are not responsible. If divorces were to be granted to all those who have entered the .marital state and afterward make like assertions, the courts would be busy with that class of litigation to the exclusion of other matters. We fully agree with appellant that.the respondent’s conduct has been harsh and sometimes unjust and not of such a character as was calculated to promote harmony and add to the marital felicity. On the other
We have not pretended to hold, nor do we wish to be so understood, that cruelty on the part of the wife may not become as much a cause for divorce in favor of the husband as if the cruelty were committed by the husband. Nor do we hold that cruelty may not consist of acts and conduct as well as actual physical violence. When, however, either party seeks a divorce from the other on the grounds of cruelty which consists merely in words and conduct as distinguished from physical violence, the occasion for the words and conduct and the circumstances under which they were provoked must be taken into consideration and duly weighed before arriving at the conclusion that they constitute such cruelty as will justify a decree of divorce.
We quite readily agree with counsel for appellant that this case presents some deplorable aspects and is calculated to provoke sympathy from one who will carefully examine the facts and circumstances as they are disclosed by this record. When viewed, however, by the unbiased mind of one who is not by force of employment partisan in his view of the parties and circumstances, that sympathy must necessarily go out in a measure toward both of the parties to the case.
We say again that we would not be justified in reversing the judgment in this case and ordering a decree of divorce. The petition is denied.