Pfutzenreuter, v. Pfutzenreuter, 9527

• Decision Date: 19 June 1956
• Docket Number: No. 9527,9527
• Citation: 77 N.W.2d 563,76 S.D. 276
• Parties: Nellie Mae PFUTZENREUTER, Plaintiff and Appellant, v. Alf S. PFUTZENREUTER, Defendant and Respondent.
• Court: South Dakota Supreme Court

Page 563

77 N.W.2d 563

76 S.D. 276

Nellie Mae PFUTZENREUTER, Plaintiff and Appellant, v. Alf S. PFUTZENREUTER, Defendant and Respondent.

No. 9527.

Supreme Court of South Dakota.

June 19, 1956.

D. M. Joyce, C. W. Hyde, Aberdeen, for plaintiff and appellant.

Elmer Thurow, Aberdeen, for defendant and respondent.

RUDOLPH, Judge.

Plaintiff, the wife, brought this action for a divorce. Defendant filed a cross-complaint seeking divorce. The trial court denied a divorce to either and plaintiff has appealed.

The trial court determined that plaintiff had failed to establish facts sufficient to constitute cause for divorce either on the ground of extreme cruelty or habitual intemperance.

The question presented by this record is whether the clear preponderance of the evidence is against the findings and judgment of the trial court. If it is, it is the duty of this court to set the judgment aside. First Nat. Bank of Rapid City v. McCarthy, 18 S.D. 218, 100 N.W. 14; Schmidt v. Norbeck, 45 S.D. 557, 189 N.W. 524; Scriven v. Wintersteen, 69 S.D. 515, 12 N.W.2d 371.

Extreme cruelty as a ground for divorce is defined by SDC 14.0708, as follows: 'Extreme cruelty is the infliction of grievous bodily injury or grievous mental suffering upon the other, by one party to the marriage.' Habitual intemperance is defined by SDC 14.0711 as follows: 'Habitual intemperance is that degree of intemperance from the use of intoxicating drinks which disqualifies the person a great portion of the time from properly attending to business, or which would reasonably inflict a course of great mental anguish upon the innocent party.' Under SDC 14.0712 habitual intemperance must continue for one year before it is a ground for divorce. Under the statutes the infliction of grievous mental suffering constitutes extreme cruelty, and intemperance, for a period of one year, which reasonably inflicts a course of great mental anguish, constitutes habitual intemperance. We conclude, therefore, that intemperance if in a degree which would reasonably inflict grievous mental anguish upon the innocent party amounts to extreme cruelty as defined above, provided the intemperance continues for a year or more.

It follows that under the facts presented and under these statutes nomenclature becomes unimportant. The position of appellant is that the great weight of the evidence establishes that the intemperance of the defendant was to a degree which reasonably inflicted a course of great mental anguish upon her. Whether such alleged action is denominated extreme cruelty or habitual intemperance is unimportant in this case. The cause for divorce in established if the great weight of the evidence is as claimed by appellant.

Construing identical statutes the Idaho court in the case of De Cloedt v. De Cloedt, 24 Idaho 277, 133 P. 664, at page 666, said: 'Under the statute it is clear that habitual intemperance means that degree of intemperance which occasions and inflicts great mental anguish upon the innocent party. The statute defining habitual drunkenness does not mean that a person would have to be drunk all of the time, neither does it provide that he shall be incapacitated from pursuing his usual labors during any particular hours or any time, but it does mean one who has a fixed habit of frequently getting drunk, and that such drunkenness causes the innocent party to suffer great mental anguish and suffering. The statute does not provide that the person shall be generally drunk, or that he is drunk more hours than he is sober. It is sufficient that he have the habit and that the habit is firmly fixed upon him, that he gets drunk with recurring frequence, periodically, or that he is unable to resist when opportunity and temptation is presented.'

These parties were married in February, 1946. Plaintiff had a son eleven years old who was adopted by defendant. Plaintiff did not know defendant drank prior to their marriage. Plaintiff testified that shortly after they were married defendant became drunk and that he continued drinking heavily throughout their married life and was drunk innumerable times; that when she would remonstrate he would tell her 'if I didn't want to live there I could get the hell out,' and that he called her vile names. She further testified that he would come home so drunk he was unable to undress; that she would have to sit in a chair the entire night and that he would wet himself and the bed, and vomit in the bathroom and bedroom. She would clean up after him. Further that he kept liquor at different places around the farm and would drink while doing his work; that he was arrested for drunkenness, had serious accidents with the truck, and was thereafter unable to obtain insurance covering the truck in his name. Plaintiff also testified that because of defendant's acts she became ill and has been under the care of a doctor for some time. The testimony of the plaintiff was to a large extent corroborated by the son.

The weight of plaintiff's testimony of course is to be determined by the trial court. We have set forth the brief resume of this testimony to furnish a background for testimony by defendant. We quote a portion of defendant's testimony.

'Q. Oh, you did have liquor on the farm, where did you keep it? A. In the house or barn, where ever I was working.

'Q. On the machinary? A. Very seldom.

'Q. You had some on the machinary? A. Yes. Occasionally.

'Q. You kept it in the field, didn't you? A. No.

'Q. Did you keep it hid near a school house? A. I don't recall that. I might have when I was farming.

'Q. You drank while you were operating farm machinary, didn't you? A. Very seldom.

'Q. You did drink while you were operating farm machinary? A. A little.

'Q. Didn't you keep a bottle of liquor in there? A. Well, what of it. I suppose I did.

'Q. ...