Bizer v. Bizer

• Decision Date: 19 January 1900
• Parties: J. F. BIZER, Appellant v. FLORA M. BIZER
• Court: Iowa Supreme Court

81 N.W. 465

110 Iowa 248

J. F. BIZER, Appellant v. FLORA M. BIZER

Supreme Court of Iowa, Des Moines

January 19, 1900

Appeal from Wapello District Court.--HON. T. M. FEE, Judge.

THE plaintiff prayed for a divorce on the ground that defendant had committed adultery. The defendant based her prayer for like relief on the charge of adultery, cruelty, and habitual drunkenness. The petition was dismissed, and, on the cross petition, a decree entered as prayed, on the finding that plaintiff had, since marriage, become an habitual drunkard. He appeals.

Reversed.

Mitchell & Hunter and W. W. Cory for appellant.

McNett & Tisdale for appellee.

LADD J. GRANGER, C. J., not sitting.

OPINION

LADD, J.

These parties were married in 1882, having a daughter fourteen years old, and a son of twelve years, and separated in August, 1897,--a few days after this action was begun. During the last eighteen months they had not cohabited. She explained that her refusal was because of having contracted gonorrhea from him, and his failure to produce a doctor's certificate of his cure as a condition precedent. He denies ever having been afflicted with such a disease, and certainly the evidence falls short of establishing the necessary exposure. Doubtless, the defendant believed she was suffering from such an ailment, but her condition may be fully accounted for without the imputation of wrong doing on her part or that of her husband. The neck of her womb had been lacerated in childbirth, several years before, and from this the inflammation of the parts and the virulent discharge may have resulted. The physicians agree that leucorrhoea of long standing, which often results from a tear, can only be distinguished from gonorrhea by the use of the microscope. The opinion of the doctor first treating her is fully met by his admissions that this crucial test was never applied, and the testimony of others makes it clear that her disease probably resulted from her condition, and that it was not gonorrhea. Besides, the evidence does not warrant the conclusion that plaintiff had associated with lewd women. The only testimony tending to sustain this charge is that of a negro clerk of a house of ill-fame. Such a person is ordinarily entitled to little credit. The plaintiff denies the accusation, and is corroborated by the evidence of the defendant tending to show that he could not have been away from home that night. But she states that he admitted having a venereal disease two years after their marriage, and was treated by a physician of Kalamazoo, Michigan. The plaintiff denies this, but testified to being treated for a nervous trouble, resulting in locomotor ataxia, with which he is now afflicted. The charges of adultery and cruelty against him are not sustained.

II. Nor does the evidence warrant the conclusion that he is an habitual drunkard. That he used intoxicating liquors as a beverage before and after marriage is conceded. And the direct testimony of his wife tended to show that he had not been sober for five years, and that, at her suggestion, he kept alcohol in the house so that he need not go to the saloons. But on cross-examination she is able to mention but two or three occasions within fifteen years when he appeared visibly affected. One Peck based his judgment that he had been under the influence of liquor frequently on his shambling walk, which resulted from having locomotor ataxia. Others saw him in saloons or drank with him. His near neighbors, however, who had known him since boyhood, and saw him almost daily, and the father who reared him, never knew nor heard that he drank excessively or became intoxicated. He is shown to have been an industrious man, devoted to his business, and, even if he did get to "feeling good" occasionally, as one witness puts it, this does not stamp him an habitual drunkard. Nor to be such was it essential that he be continually in that condition. One may be an habitual drunkard, and yet remain sober for days, and even weeks, at a time. "He is an habitual drunkard," says the court in Com. v. Whitney, 5 Gray 85, "whose habit is to get drunk; whose inebriety has become habitual." In Ludwick v. Com. 18 Pa 172, it is said that to be such he must have the fixed habit of drunkenness. The definition of the term given in State v. Pratt, 34 Vt. 323, is "one who is in the habit of getting drunk, or who commonly or frequently is drunk." To the same effect, see Brown v. Brown, 38 Ark. 324; Magahay v. Magahay, 35 Mich. 210; Walton v. Walton, 34 Kan. 195 (8 P. 110); Murphy v. People, 90 Ill. 59; Burns v. Burns, 13 Fla. 369; Mack v. Handy, 39 La.Ann. 491, 2 So. 181; Meathe v. Meathe, 83 Mich. 150 (47 N.W. 109); 9 Am. & Eng. Enc. Law, 814. See Wheeler v. Wheeler, 53 Iowa 511, 5 N.W. 689. In McBee v. McBee, 22 Ore. 329 (29 Am. St. Rep. 613, 29 P. 887), the court, after a review of all the authorities, concludes that "there must be frequent and regular recurrence of excessive indulgence in intoxicating drinks to constitute an habitual drunkard. It is not necessary that he should drink liquors to excess, and become intoxicated every day, or even every week, but there must be such frequent repetition of excessive indulgence as to engender a fixed habit of drunkenness. Occasional acts of intoxication are not sufficient to make one an habitual drunkard. There must be the involuntary tendency to become intoxicated as often as the temptation is presented, which comes from a fixed habit acquired from frequent and excessive indulgence. The man is reduced to that pitiable condition in which he either makes no vigorous effort to resist and overcome the habit, or his will has become so enfeebled by the indulgence that resistance is impossible. There is generated in him, by frequent and excessive indulgence, a fixed habit of drunkenness, which he is liable to exhibit at any time when the opportunity is afforded. He is an habitual drunkard, because he is commonly or frequently in the habit of getting drunk, although he may not always be so. When a man has reached such a state of demoralization that his inebriety has become habitual, its effect upon his character and conduct is to disqualify him from properly attending to his business, and, if he be married, to render his presence in the marriage relation disgusting and intolerable." This is an accurate summary of what is meant by "habitual drunkenness" as a ground for divorce, and we need only add that the record utterly fails to show the plaintiff to have the fixed habit of excessive drinking.

III. The petition charges the defendant with having committed adultery with one Burns, who had been employed by the plaintiff for a month in 1890, and during the seasons of 1891 and 1895. He purchased the wagons, cans, and good will of the plaintiff's business of retailing milk in Ottumwa, September 7, 1895, but continued to board with these parties until the sale back to the plaintiff, April 7, 1897, when, according to the latter's testimony, he was forbidden to return to the premises. The wife was advised of this, but Burns denies it, while admitting knowledge that the husband's suspicion of undue intimacy with the defendant was the occasion of the purchase. Nevertheless, he called upon her several times thereafter in plaintiff's absence, and without objection on her part. Knowing, as both did, of plaintiff's belief in their guilt, these meetings cannot be explained on the score of platonic friendship, even though there was a disparity in their ages of fifteen years. They happened to be in the forenoon, when the plaintiff was delivering milk in the city, and when the children either happened to be away from home or left soon after his arrival. For some time prior to January, 1897, the plaintiff had noticed that the window blinds toward the barn, raised by him on leaving the house, a little after 4 o'clock in the morning, would be...