24 Wash. 460 | Wash. | 1901
The opinion of the court was delivered by
Appeal from decree of divorce. The complaint is substantially as follows: Paragraph 1 alleges residence of both plaintiff and defendant in King county for more than nine years last past. Paragraph 2 avers that when plaintiff was about twenty-one, and defendant twenty-three, years of age, in the city of Seattle, in March, 1897, the plaintiff’s father, on whom he relied for guidance and counsel, was absent from the city; that throughout the year 1896, until about February, 1897, defendant was known to plaintiff as a lewd and reckless girl, who had with young men a promiscuous and unre- . strained.intercourse, and that on the 28th day of Januaiy, 1897, defendant procured and caused to be issued out of the justice’s court a warrant for the arrest of plaintiff upon a charge of seduction, and caused the plaintiff to be arrested and imprisoned for one night; that plaintiff was without money at the time and without any person to consult with and confide in except his mother, who was in extreme distress over his imprisonment and urged him to do everything necessary to secure his release from such imprisonment, which his mother regarded as a disgrace to his family; that the plaintiff was the sole reliance of his mother and four minor children for, support and main-' tenance; that plaintiff saw no other means of securing release than to intermarry with defendant, and they were married on the 29th of January, 1897. Paragraph 8 is
It is difficult to conceive any legal ground for divorce stated in the complaint. There does not appear any sufficient allegation of cruel treatment, which is the only ground intimated.- The essence of the statement of the legal ground of cruel treatment is' the specification of such facts as tend to establish injury to the health or person of the complainant. 1 Bishop, Marriage, Divorce & Separation, § 1537. It will be observed that the charges made against defendant state that she was quarrelsome and vicious in disposition and murderous in threats against the plaintiff and his parents. There is no specification of what those threats were, or how or when made, so that the court can conclude their effect; but the plaintiff concludes that defendant made herself an intolerable nui
“The only theory upon which we can account for the action of the court below is that it came to the conclusion that, under all the circumstances of the case, the parties would not probably again live together as husband and wife, and from that fact assumed that it would be proper to decree a dissolution of the marriage bonds. . . . As our statute at present stands, it is not enough tO' authorize a decree of divorce that the court should find as a fact that the parties will no longer live together as husband and wife. It is necessary that there should he found to exist some of the causes mentioned in the statute in favor of the one as against the other party, and that the party in favor of whom such cause of divorce is found has not been guilty of like misconduct against the other party.”
Again, the provision of our Code, “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”
“We do not think it was intended by the legislature that a divorce should he granted in every case wherein it should he found ‘that the parties can no longer live together/ and where, as here, their failure to live together is due to their own obstinacy and stubbornness, we think a divorce should he denied. It is not the policy of the law that divorces should he granted merely because parties 'from unruly temper’ or mutual wranglings live unhappily together. In order to have relief, it is not required that the party complaining should he wholly without fault for. the law recognizes the weakness of human nature, and measures the conduct of the parties by the standard of common experience. But where the parties to a divorce suit are in pari delicto, the conduct of each being a constant aggravation to further offense by “the other, no divorce will he granted at the instance of either party.”
And Cate v. Cate, 53 Ark. 486 (14 S. W. 675), is quoted with approval as follows:
“Unhappiness sufficient to render the condition of both parties intolerable may arise from the mutual neglect of the conjugal duties; hut when the parties are thus at fault, the remedy must he sought by them, not in the courts, hut in the reformation of their conduct. The remedy is in their own hands, and until it has been tried without effect by the party complaining, the courts will not give effect to the complaint. Until this home remedy has been tested and failed, the condition of each may he said to he due to his or her own acts, and one must hear the consequences of his own misconduct.”
The matter in the second paragraph, preceding the marriage, is immaterial and affords no grounds for its disso
But upon an examination of tbe evidence given at tbe trial we are convinced plaintiff offered no substantial testimony to entitle bim to a decree. He should have been nonsuited at tbe conclusion of bis own testimony. He stated tbat be bad known defendant seven years before tbe marriage, bis family and hers living near each other during tbe whole time, and tbat be was well acquainted with her; tbat be was very intimate with her, and tbat be knew she was wild and reckless, and kept company with various young men, and was running around and sporting with them; tbat be knew she bad borne a .child some years before; and tbat be himself bad been intimate with her; and tbat be married her to avoid a prosecution for seduction. He'says tbat after tbe marriage be could not get along with her at all. ’The reason was her temper, quarreling, and threats. As to threats, be says she threatened to kill bim and kill herself and kill her child; tbat these threats were made when she bad “spells”, two or three times a week, and tbat she used bad language, swearing and hollooing and screaming. He says she was somewhat hysterical, and it was impossible for plaintiff to stand tbat; tbat be tried to avoid quarrels with her, and tbat be himself was very good natured; tbat defendant’s family were quarrelsome among themselves. Tbe plaintiff, however, in bis examination in chief, in answer to questions from bis own counsel, gave much that was explanatory of these threats be testified to. Tbe following question and answer give the true color of bis testimony:
*467 “Question: How, you have mentioned these threats; just give the court fully all that you know about her making threats against herself and the child and anybody else.
“Answer: She would threaten to kill my mother. I don’t know how many times she would make these threats, but I know two dates she did make these threats since 1 came back from Alaska. I went to her to see the baby, and talked to her, and she-wanted me to live with her, and I told her I could not do it, and she said she would kill the baby and kill herself and kill me. That was the last day of June. The first day of July I went to see her again, and she said she would kill the baby, and wanted me to come into the house and see the poison she had bought. I told her, no, I wouldn’t do it. I told her not to do anything like that. And she wanted to bring the poison out to me, and I wouldn’t have it.”
He further testified that he lived with her about five months after the marriage. A very few days before her confinement, plaintiff and defendant were ordered or sent from his father’s house, and they occupied a wretchedly furnished room in an isolated house not far off, plaintiff still taking his meals and remaining most of the time at his father’s, while defendant was alone, and he was absent when she was confined. He testified that the child was born on the 28th of June; that he left her on the 5th of July following; that he left her because at the time she was quarreling and complaining of him and threatening to kill his mother, and that in such a quarrel he left her, and did not return for over two years, when he went to see the child, and told her he would not live with her and wanted to be free from her, and she made the threat to kill herself and kill the child. It appears that plaintiff had practically contributed nothing to the support of the defendant at any time after the marriage. Plaintiff also testified that at the time of the marriage his family and defendant’s were of about equal station. They were
The decree is reversed, with instructions to dismiss the cause.
Dunbar, Fullerton and Anders, JX, concur.