Day v. Day

• Citation: 50 N.W. 979,84 Iowa 221
• Parties: DAY v. DAY.
• Decision Date: 20 January 1892
• Court: United States State Supreme Court of Iowa

84 Iowa 221

50 N.W. 979

DAY

v.DAY.

Supreme Court of Iowa.

Jan. 20, 1892.

Cross-appeals from district court, Muscatine county; C. M. WATERMAN, Judge.

Action for divorce on the ground of desertion. Defendant denies the alleged desertion, and pleads that her absence from plaintiff's house, and her living apart from him for two years past, was with plaintiff's express consent and acquiescence, and upon the sole condition that plaintiff should not be responsible for defendant's support during such absence, which condition she has complied with, and avers that such consent was not withdrawn until the commencement of this cause. Defendant, in a cross-bill, asks a divorce on the grounds of desertion and of cruel and inhuman treatment. Plaintiff's reply to defendant's cross-bill is substantially a denial of all its material allegations. The court below dismissed plaintiff's petition and defendant's cross-bill, and rendered judgment against the plaintiff for costs, including an allowance for temporary alimony. Both parties appeal.Richman & Burk, for plaintiff.

J. Carskadden, for defendant.

KINNE, J.

1. Plaintiff claims a divorce on the ground of desertion. Plaintiff and defendant were married September 28, 1882, and lived together as husband and wife, at plaintiff's house, until April 11, 1887. At the last-mentioned date defendant left plaintiff's house, and went to the residence of her daughter. Both parties to the marriage were elderly persons, having grown-up children by former marriages. Defendant and her child, after the marriage, took up their abode with plaintiff on his farm. The evidence shows that plaintiff was a farmer, and worth $20,000 or more; that after his marriage to defendant his family consisted of from 7 to 10 persons; that her time was mostly occupied with house-work; that help was rarely employed by plaintiff; that plaintiff was not inclined to trust defendant with money; that when she advised him she was so ill as to require medical treatment, he doled out to her 25 cents to pay therefor; that he did not require his children to treat defendant decently and respectfully, but permitted them to treat her with disdain and contempt, and to abuse and insulther. This course of treatment was especially pursued by the plaintiff's daughter Josephine; and one witness testifies that Josephine told her, prior to the marriage, that she would make it so hot for a step-mother that she would get out of there in a hurry. It is proper to say that Josephine denies this. That Josephine called the defendant a “liar, a d____d liar,” and shook her fist in defendant's face, and also called her a “thief,” more than once, is fully established. When told by his wife of the language used by his daughter towards her, he did not require his daughter to apologize for her conduct. At another time, equally without provocation, Josephine, in the hearing of others, called the defendant “a d____d liar.” At still another time Josephine used this language to defendant: “What in hell and damnation have you and pa been sneaking around in my room for?” It is manifest that plaintiff knew of the course of treatment of his children towards his wife. Much of it is shown by the testimony to have been actually brought to his knowledge. There is no claim that plaintiff advised his children to commit the acts complained of, nor is it necessary that he should have done so. Whatever course of conduct was by his children pursued towards his wife with his knowledge he must be held accountablefor as having assented thereto. Nor can he protect himself from the legal results which may follow such cruel and inhuman treatment as will justify a divorce to the wife on the ground that his children were the wrong-doers, and that he ought not to be compelled to send them away from their home. The law requires a husband to do all that he reasonably can to protect his wife from insult and abuse, regardless of the source from which it may come. If, as seems to be the case here, he could not or would not control the conduct of his children to the extent of securing to the wife decent treatment at their hands, then he is, if possessed of ample means, bound to provide a home where she can be free from their insult and abuse. Atkinson v. Atkinson, 67 Iowa, 364, 25 N. W. Rep. 284. Failing to do so, she is, in a proper case, justified in leaving him, and such leaving will not constitute legal desertion. The evidence satisfactorily shows that plaintiff was completely under the dominion of his children, especially his daughter Josephine; that she ruled the household; that she, with his knowledge, usurped the place of the wife; that he did not even attempt to correct the abusive conduct of this 30-year-old daughter, but virtually assented to a course of conduct on her part towards his wife not only often insulting and abusive, but constantly humiliating and unendurable to the defendant, who was a woman of nervous temperament, advanced in years, and apparently of impaired health. Was the treatment accorded defendant such as justified her in leaving the plaintiff? Was it such as would give her good grounds for a divorce? To our minds both questions must be answered in the affirmative.

This court...