Duberstein v. Duberstein

• Decision Date: 22 December 1897
• Citation: 171 Ill. 133,49 N.E. 316
• Parties: DUBERSTEIN v. DUBERSTEIN.
• Court: Illinois Supreme Court

171 Ill. 133

49 N.E. 316

DUBERSTEIN

v.DUBERSTEIN.

Supreme Court of Illinois.

Dec. 22, 1897.

Appeal from appellate court, First district.

Bill for divorce by Isaac Duberstein against Haiah Feige Duberstein. A decree for the complainant was affirmed by the appellate court (66 Ill. App. 579), and the defendant appeals. Reversed.

This bill for divorce, filed on November 29, 1895, in the circuit court of Cook county, by the appellee, Isaac Duberstein, against his wife, the appellant, Haiah Feige Duberstein, seeks a divorce from her upon the charge of extreme and repeated cruelty exercised by her towards him. An answer was filed by the defendant below (the appellant here), denying the charge of cruelty made against her, and denying the specific acts of cruelty set up in the bill. The answer also pleaded condonation of the acts of cruelty set forth in the bill; and it furthermore made a countercharge of cruelty against the complainant below, the appellee here, and specified particular acts of cruelty on the part of the complainant in support of the countercharge. By leave of court, an amended answer was filed in place of the original answer. The replication was filed to the amended answer on March 10, 1896. On April 25, 1896, a motion was made by the defendant below for a jury trial, which motion was continued. There is nothing in the abstract filed to show how this motion was disposed of. But the cause went to a hearing before the judge, without a jury, and, as far as can be ascertained from the abstract, without objection by the defendant below, although a motion to submit the case to a jury was made after all the evidence had been introduced on both sides, and after the arguments had been heard, and after the court had taken the cause under advisement. Testimony was taken on behalf of the complainant to sustain the charge of cruelty, and on behalf of the defendant to sustain the countercharge of cruelty. The court rendered a decree sustaining the allegations of the original bill, and granting to the complainant therein (the appellee here) a divorce, upon the ground that the defendant (the appellant here) had been guilty of extreme and repeated cruelty towards her husband. The decree of the circuit court has been affirmed by the appellate court, and the present appeal is prosecuted from such judgment of affirmance.

Moses, Rosenthal & Kennedy and Pam & Donnelly, for appellant.

Zolotkoff & Zoline, for appellee.

MAGRUDER, J.

The appellate court, in its opinion in this case, summarizes the acts of cruelty charged by the appellee against the appellant as follows: ‘(1) The throwing of a chair in January, 1886, on Mr. Duberstein, inflicting a serious injury on his side; (2) the drawing of a knife upon him in the fall of 1888, without injury to him; (3) the throwing of an iron stove cover at him, striking his head, and inflicting serious injury, in April, 1891; (4) use of violent and abusive language and threats in August, 1894, and at other times previous thereto; (5) striking Mr. Duberstein with an ornament stone in April, 1895, and throwing chairs and cuspidor at him, inflicting two wounds on his head; that he was under the care of a physician, and compelled to undergo an operation.’ From an examination of the pleadings and the evidence, we are inclined to regard the summary thus made by the appellate court as correct. So far as the fourth charge, as to use of violent and abusive language, is concerned, it may be said that this charge constitutes no sufficient ground for a divorce. As to the first three acts of cruelty charged by the appellee against the appellant, as specified in the above summary, the evidence shows that they were all condoned by the appellee. The appellee makes the following statement in his testimony: ‘Commencing from January, now, we lived for about four or five weeks very happily, and I brought all my money home. * * * It was 1895, instead of 1894, when we lived happily for four or five weeks, in January or February.’ For reasons found in the conjugal relation, and in view of the difference in the duties respectively required of the husband and wife in the domestic establishment, a less stringent rule is held against her than against him, so far as inferences of condonation are concerned from the overt acts of the parties respectively. The authorities hold that condonation is not so strict a bar against a wife as against a husband, inasmuch as she may find it difficult to quit the common domicile, and often submits through necessity. Hence condonation on the part of the wife is not pressed with the same vigor as condonation on the part of the husband. Phillips v. Phillips, 1 Ill. App. 245;Horne v. Horne, 72 N. C. 530; Reese v. Reese, 23 Ala. 785; Davies v. Davies, 55 Barb. 130; Sterling v. Sterling, 12 Ga. 201. The converse of the rule must be true, that condonation is a stricter bar against the husband as against his wife than it is against the wife as against her husband; and condonation by the husband will much more readily be relied upon as a defense in favor of the wife where she repeats the offense condoned. The testimony here establishes a condonation by the appellee of the acts of cruelty charged against his wife, which are alleged to have taken place prior to April, 1895. In view of such condonation, we do not deem it necessary to discuss the acts of cruelty taking place before April, 1895. The testimony in support of them comes principally from relatives and employés of the appellee. They are denied by the appellant, both in her answer and in her testimony; and many circumstances, unnecessary to be here dilated upon, tend to support her denial. But, whether such prior charges of cruelty against her are sustained or not, it is virtually conceded on the part of the appellee that the testimony as to what occurred in January and February, 1895, amounted to a condonation of such offenses, unless the right to rely upon them was revived by the alleged conduct of appellant in April, 1895.

Appellee insists that in April, 1895, appellant was guilty of such acts of cruelty towards him as to do away with the effect of the previous condonation. The general rule is that a repetition of the same injury does away with the condonation, and revives the former injury. If, after forgiveness of the offense charged, the defendant has given to the complainant no just cause for complaint, the forgiveness will be a good defense, but, if the condition is broken, it will be no defense; hence it has been said that all condonation is in a sense conditional, and involves an express or implied agreement that the party who forgives the other does so only on the condition that the party forgiven will not repeat the offense. 5 Am. & Eng. Enc. Law, pp. 821 (note 1), 823; Johnson v. Johnson, 4 Paige, 460;Yates v. Yates, 13 N. J. Eq. 281;Kennedy v. Kennedy, 87 Ill. 250. The question, then, arises whether the act of cruelty charged by the appellee as having taken place in April, 1895, had the effect of reviving the acts of cruelty which occurred before that date, and which were condoned in January and February, 1895, so as to justify the appellee in relying upon such previous acts of cruelty in support of the charge made in his bill.

Appellee swears, fixing the date at one time in the early part of April, 1895, and at another time in the middle of April, 1895, that one Sunday he came home about noon, and went to bed; that his wife looked under his pillow for his vest, as usual (to get his money); that he pushed her away; that he pulled the cover over his head; that she took a stone ornament, called a seashell, which was in the room; that there was a blow on his head; that she made two holes in the back of his head; that he commenced to cry and halloo for help; that he stayed in the house a little while the next morning, and then went for a doctor; that he lived with her a week after that, but did not after that occupy the same bed with her or cohabit with her. Appellant swears, in regard to this transaction, that upon the occasion referred to, in April, 1895, appellee came home very drunk; that he climbed up the stairs; that she heard somebody fall down, and opened the door, and saw it was her husband; that she took him by the hand, and led him up, and put him in bed, and he fell asleep; that it was 3 o'clock in the afternoon; that she went back to see how he was getting along, and found him awake in bed; that he gave her a slap in the face; that the blood ran from her teeth; that she saw he was drunk, and paid no attention; that she told him to rest and sleep, that he did not know what he was doing; that he ran out from the bed, and beat her about the shoulders, and tore her wrapper, and began to drag her about by the hair, and threw her on the floor; that she ran into the kitchen; that he ran after her, and fell; that, when she saw him fall, she came back; that he fell in the middle of the room, between the parlor stove and the bureau, a very narrow place, and an ornament was there; that she tried to lift him up, and seat him on the chair; that his head was bleeding; that she got so frightened that she ran to the landlady, and told her that her husband had fallen down and hurt his head, and that she was afraid he would faint; that she told the landlady he was drunk; that she found the daughters of the landlady, and asked the older one to go for the doctor, but the doctor was not at home; that he laid down in bed again, and went to sleep; that she remained in the house that night. She also says: ‘I never struck him with the ornament that was here yesterday. I never said a bad word to him. I loved him. I never beat him. He used to beat me when drunk.’ It is sought to support the testimony of the appellee in regard to this occurrence by that of one of his employés, named Rubinstein, who had worked for him, he being a tailor. But this witness did not see him until the Friday night after the Sunday on...