Hines v. Hines

• Decision Date: 22 November 1921
• Docket Number: 34100
• Citation: 185 N.W. 91,192 Iowa 569
• Parties: GRACE HINES, Appellee, v. GILBERT HINES, Appellant
• Court: Iowa Supreme Court

185 N.W. 91

192 Iowa 569

GRACE HINES, Appellee, v. GILBERT HINES, Appellant

No. 34100

Supreme Court of Iowa, Des Moines

November 22, 1921

Appeal from Polk District Court.--JOSEPH E. MEYER, Judge.

ACTION for divorce. Decree entered finding equities in favor of plaintiff. Defendant appeals.

Affirmed.

Wilson & Shaw and W. F. Moore, for appellant.

J. A Ralls and Sayles & Taylor, for appellee.

DE GRAFF, J. EVANS, C. J., WEAVER and PRESTON, JJ., concur.

OPINION

DE GRAFF, J.

Plaintiff-appellee Grace Hines instituted this action against her husband Gilbert Hines for a divorce alleging cruel and inhuman treatment and personal indignities, involving excessive sexual intercourse and demands therefor, which impaired her health and endangered her life. An answer was filed by the defendant denying the material allegations of the complaint and by cross-petition defendant alleged the willful desertion of the wife from the home of the defendant, and for said cause asked a divorce from the wife. A trial was had on the merits resulting in a decree in favor of the plaintiff dismissing defendant's cross-petition, granting to plaintiff the care and custody of the two minor children and awarding plaintiff judgment against defendant in the sum of $ 10 per week for the support of said children until further order of court.

The merits of this controversy present nothing new in judicial annals relative to divorce. It is the usual story of a marriage in which cruelty is charged by the wife against the husband predicated on compulsory excessive sexual intercourse which it is alleged injured the health of the wife and rendered her life burdensome and intolerable.

The primary contention of appellant is that the evidence of the plaintiff is not sufficiently corroborated to warrant a decree of divorce. We are not unmindful that the trial court who had all the witnesses before him was better able to judge of the truthfulness of their testimony than is this court. We may also say in passing that it is but natural that a sensitive refined woman would not appeal to anyone except her husband under the circumstances recited and charged by her, nor proclaim under such circumstances her intimate troubles to the world. Had she told others the testimony of such parties on this trial would have been hearsay and incompetent.

True the statute provides that the allegations of the petition must be established by competent evidence and no divorce shall be granted on the testimony of the plaintiff alone. Code Section 3173. Under this provision it is sufficient if circumstantial evidence is found corroborating the plaintiff as to the material allegations recited in the petition. The facts may fail to directly corroborate the plaintiff in the particulars charged, but if the plaintiff's testimony is indirectly or circumstantially corroborated the court is warranted in determining the equities to be in plaintiff's favor.

In the instant case the record discloses that the plaintiff when she left the defendant was in poor health; that thereafter and during her absence from him she regained her health; that prior to leaving her home she consulted a doctor, and he testified that she was afflicted and suffering with vaginitis and general female trouble; that she did not respond to his treatment while living with her husband and that he advised her to go away for a time, although not intending to recommend a permanent separation. May it be said that these facts are not corroborative in this case?

A wife has the right to protect her health and her life from the ungoverned lust of her husband by seeking a divorce. Such an action presents as strong a case for relief as when she flees from his intolerable cruelty inflicted by other means....