Segelbaum v. Segelbaum

• Decision Date: 05 October 1888
• Citation: 39 N.W. 492,39 Minn. 258
• Parties: SEGELBAUM v SEGELBAUM, (TWO CASES.)
• Court: Minnesota Supreme Court

39 Minn. 258

39 N.W. 492

SEGELBAUMvSEGELBAUM, (TWO CASES.)

Supreme Court of Minnesota.

October 5, 1888.

(Syllabus by the Court.)

In an action for divorce, on the ground of cruelty, evidence of the conduct of the parties, and acts not specially pleaded, and antedating the charges specifically made in the complaint, may be received as confirmatory and cumulative evidence in support of the facts pleaded.

Provocation which is disproportionate to the wrongs and injuries suffered is insufficient to sustain a plea of justification.

Where the parties are shown to have continued to live together as husband and wife, and other marital duties are observed, a refusal to occupy the same bed does not, by itself, constitute desertion.

Evidence held sufficient to sustain the order for allowance of alimony as made by the trial court.

Appeal from district court, Hennepin county; YOUNG, Judge.

Robinson & Baker and Geo. P. Wilson, for Max Segelbaum, appellant.

W. E. Hale and A. P. Loomis, for Adele Segelbaum, appellee.

VANDERBURGH, J.

These two cases were tried together, and upon the whole evidence submitted for the determination thereof, and it was stipulated that the evidence so introduced should be used in either case in so far as it was material. The court thereupon adjudged the plaintiff in the first case entitled to a divorce, on the ground of cruelty, and dismissed the action of the plaintiff in the second case, which was brought for desertion.

1. A former action by the plaintiff, Adele, for cruel and inhuman treatment, was dismissed upon the merits, by the court, on the 20th day of February, 1884. Upon the trial of these cases the court received evidence, against the objection of the defendant, tending to show the state of feeling between the parties, and misconduct towards her on the part of the defendant, antedating the former actions. But if it was material, for any purpose, in either case, it was properly received. We think it was admissible as tending to establish a justification for or an explanation of her conduct in leaving his bed, and hence material upon the charge of desertion, and also as tending to explain and characterize the evidence of the acts and conduct relied on as the substantive ground of plaintiff's present cause of action. And this, it appears, was the ground upon which it was received. Besides, he had already given evidence of their relations and her course of conduct towards him during the same period, subject to be considered in either case in so far as material; and this opened the door for evidence of the same character on her part, as necessary to a full understanding of their mutual relations.

2. The defendant, Max Segelbaum, assigns as errors the fourth and fifth findings of fact by the trial court, on the ground that the same are not supported by the evidence. The court therein finds that the allegations in his complaint, charging desertion, are not true, and also finds that the parties lived together as husband and wife from the date of their marriage until February 27, 1884, she having the care of their household and children, except that from the month of January, 1883, until the commencement of this action, she has refused to occupy his bed. The action of the plaintiff, Max, for desertion, was commenced November, 1886, and that of the plaintiff, Adele, for cruelty, on the 24th day of February, 1887. We think there is evidence tending to support the court's findings of fact in respect to the relations and continued cohabitation of the parties, and the only question to consider is the legal conclusion to be drawn therefrom. In the ecclesiastical courts, which had jurisdiction of matrimonial causes, desertion was not a ground for divorce, but the remedy was a suit for the restitution of conjugal rights, where either party separated from the other without any sufficient cause, in which case the court would compel the parties to come together again, if either party was weak enough to desire it contrary to the inclination of the other. 3 Bl. Comm. *94. In those courts, however, a clear distinction is made between marital cohabitation and sexual intercourse, and the jurisdiction extended no further than to enforce the former. Forster v. Forster, 1 Hagg. Const. 154. In this country, the remedy for desertion or abandonment, and the breaking up of the matrimonial relations for the statutory period, without lawful cause, is divorce; and the tenor of the American decisions, following the distinction above referred to, is not to recognize the denial of marital intercourse by either of the parties as in itself a ground of divorce, either under the head of “desertion” or “cruelty.” Nor will it justify desertion or other marital dereliction, but is left in foro conscientiœ. Steele v. Steele, 1 MacArthur, 505;Southwick v. Southwick, 97 Mass. 327;Stewart v. Stewart, (Me.) 7 Atl. Rep. 474;Morrison v. Morrison, 20 Cal. 432; Eshbach v. Eshbach, 23 Pa. St. 343; Reid v. Reid, 21...