Hershey v. Hershey
| Decision Date | 29 March 1927 |
| Citation | 121 Or. 127,254 P. 813 |
| Parties | HERSHEY v. HERSHEY. |
| Court | Oregon Supreme Court |
Department 2.
Appeal from Circuit Court, Benson County; C. F. Skipworth, Judge.
Suit for divorce by Elsie M. Hershey against Homer H. Hershey. Decree for plaintiff, and defendant appeals. Plaintiff's suit dismissed.
See also, 234 P. 288.
Arthur Clarke, of Corvallis, for appellant.
J. K Weatherford, of Albany (Weatherford & Wyatt, of Albany, and Middlekauff & Penson, of Corvallis, on the brief), for respondent.
The parties to this suit were married in San Francisco September 20, 1909. From there, after a visit in Oregon, they went to Cleveland, Ohio, where the defendant's parents resided and lived there about three years, during which time they had two children. The plaintiff's health not being good in that country, it was agreed that she should come to Oregon where her parents were living at the time and that the defendant should follow in the course of a few months. While in Ohio he was an employee on the street railway and that seems to have been his ordinary occupation. On coming to Oregon they went to live on a small ranch belonging to the plaintiff's father in Lincoln county, near Nashville. They lived in that vicinity following the dairy business until September 27, 1919. On that date, while gathering plums, a branch of the tree broke and the defendant fell to the ground, suffering a fracture of some of the dorsal vertebrae. He was immediately taken to Portland for treatment, but the result was complete paralysis of his body from the waist down. His father came from Ohio and assisted in his nursing until May 5, 1920, when he took the defendant his son, back to Ohio where he could care for him better than in this state. Meanwhile, with the plaintiff's consent, the defendant caused all the stock and other personal property on the ranch to be sold and the entire proceeds of the sale, amounting to some $2,000, to be paid to the plaintiff. Out of that she paid his hospital bill, bought herself a small tract of land in Lincoln county, and gave him $100 toward his traveling expenses to Ohio. There was some correspondence between them after he went to Ohio, but that dwindled, and finally on February 27, 1922, she filed her complaint in this suit. The usual allegations of marriage and residence in the state of Oregon are made and not denied.
It is also stated that there are six children, aged from eleven years to two years.
As grounds for divorce in her first cause of suit, the plaintiff attributes to the defendant various opprobrious epithets which she avers he applied to her at various times from three to five years before the commencement of the suit, and which it is not necessary to repeat in this opinion. She also asserts that he said to her in the presence of her mother, "I don't know whether that is my child or not," intending to insinuate that he was not the father of one of his children. For a second cause of suit, the complaint alleges that on or about May 10, 1920, the defendant willfully deserted the plaintiff and continues to live separate and apart from her without her will or consent. This desertion is predicated upon his return to Ohio in company with his father, as mentioned above.
The answer denies all the imputations of cruel and inhuman treatment attributed to the defendant and denies the desertion. The defendant further describes the accident resulting in his paralysis, and avers that, by agreement between himself and the plaintiff, he went to Ohio, where his parents and relatives could take care of him, and that he has been at all times willing and desirous of remaining with his own family if circumstances and conditions had been such that they were able to care for him, and never has intended and does not intend to desert or abandon the plaintiff or their children. This is traversed by the reply. In brief, the plaintiff seeks a divorce, and the defendant is resisting it without asking for one himself.
The testimony of the defendant and other witnesses in Ohio was taken by deposition about August 15, 1923. The testimony for the plaintiff was taken before the circuit court at the...
To continue reading
Request your trial