Zimmerman v. Zimmerman

• Decision Date: 22 December 1909
• Citation: Zimmerman v. Zimmerman, 242 Ill. 552, 90 N.E. 192 (Ill. 1909)
• Parties: ZIMMERMAN v. ZIMMERMAN.
• Court: Illinois Supreme Court

242 Ill. 552

90 N.E. 192

ZIMMERMAN

v.ZIMMERMAN.

Supreme Court of Illinois.

Dec. 22, 1909.

Appeal from Appellate Court, Second District, on Appeal from Circuit Court, Will County; Dorrance Dibell, Judge.

Divorce action by Josephine Zimmerman against John Zimmerman, in which defendant filed a cross-bill for divorce. From a decree dismissing the bill and granting defendant a divorce on his cross-bill, plaintiff appeals. Affirmed in part and reversed, and remanded in part, with directions.E. Meers, for appellant.

J. J. Wellnitz and John W. D'Arcy, for appellee.

COOKE, J.

On December 6, 1907, Josephine Zimmerman, the appellant, filed her bill for divorce in the circuit court of Will county against her husband, John Zimmerman, the appellee, charging him with habitual drunkenness and extreme and repeated cruelty. The bill also prayed for the custody of the minor children of the parties, that all the household furniture and chattels, and a just proportion of the real estate owned by appellant and consisting of their home, be given to her. Appellee answered the bill, denying the charges of drunkenness and cruelty, and filed a cross-bill charging appellant with having frequently committed adultery with one Charles Kreiger, and praying for a divorce and for the care and custody of the minor children. The appellant answered the cross-bill, denying the charge of adultery. A hearing was had before the chancellor upon the original bill and cross-bill and the respective answers thereto, which resulted in a decree dismissing the original bill for want of equity, granting appellee a divorce upon his cross-bill, awarding to appellee the care, custody, and control of the minor children, and adjudging to him the exclusive control, possession, and ownership of the real estate and all the household furniture and chattels contained in the building thereon, except appellant's personal wearing apparel and a piano belonging to an adult daughter, and ordering appellant to surrender possession of the real estate to appellee by August 1, 1908. Josephine Zimmerman appealed from this decree to the Appellate Court for the Second District, where the decree was affirmed. She has prosecuted a further appeal to this court, and here urges as grounds for reversal that the circuit court was not justified, under the evidence, in denying the prayer of the original bill; that the charge of adultery against her was not sustained by a preponderance of the evidence; and that the decree of the circuit court is inequitable, and therefore erroneous, in depriving her of all interest in the property of appellee and in permanently separating her from her minor children and preventing her from visiting them at their home.

The parties to this suit were married on July 26, 1887. Both were at the time of their marriage living at Joliet, and they continued to reside in that city as husband and wife until December 7, 1907, when an injunction, issued in accordance with the prayer of the appellant's bill, was served upon appellee, restraining him from going to or entering the dwelling house theretofore occupied by himself and family. Several children were born as the fruit of the marriage, six of whom were living when the decree was entered herein. The two oldest children are girls, aged, respectively, 17 and 19 years. The remaining children are boys, the youngest of whom was 4 years of age at the time of the trial, which was had during the month of June, 1908, and the eldest was at that time 14 years of age. At the time of his marriage to appellant appellee was employed at the steel mills of the Illinois Steel Company in Joliet and continued to work for that company until May, 1906, since which time be has been working at the city pumping station at Joliet.

The only evidence offered by appellant upon the charge of habitual drunkenness was her own testimony to the effect that appellee spent half of his money in saloons and much of his time there; that he used intoxicating liquor and often got drunk; that he was drunk most of the time; that he was drunk a large part of the time while he worked for the Illinois Steel Company. Appellant called as witnesses in her behalf her two daughters and her eldest son, who corroborated their mother as to certain acts of cruelty, but they were not questioned concerning the use of intoxicatingliquor by their father. Appellant's testimony upon the question of drunkenness was not only discredited by her own admission that the appellee had never lost a day's work on account of intoxication, but was successfully contradicted by appellee's foreman at the steel mills and by a large number of his fellow workmen who saw him daily, and who testified that they had never seen him intoxicated, had not observed any indications that he had been intoxicated, and that he was a steady and industrious workman, as well as by the testimony of neighbors and two policemen of the city of Joliet to the effect that they had seen appellee daily for a number of years, and had never seen him intoxicated.

The acts which appellant relied upon to establish the charge of extreme and repeated cruelty were four in number. She testified that her husband first struck her in 1890, again in 1899, a third time in 1902, and the last time during the month of August, 1905. She preferred charges against her husband at the time of this last occurrence, and he was arrested and entered a plea of guilty to the charges of disorderly conduct and intoxication in the police court of the city of Joliet on August 25, 1905. Thereafer the parties lived together as husband and wife, and the appellant testified that the appellee had never used violence towards her since the last-mentioned date. Appellee testified that he had no recollection of any trouble with his wife in 1890 or in 1899. He denied using violence towards his wife in 1902, and testified that the violence used by him in August, 1905, was in defense of his person against an attack made upon him by his wife, and that he pleaded guilty to the charges preferred against him in the police court because he knew nothing about court proceedings and thought it would be cheaper to pay a fine than to employ a lawyer.

During the latter part of November, 1907, the appellee learned facts which led him to believe that his wife had been intimate with one Charles Kreiger, a saloon keeper, and he immediately spoke to her about her relations with Kreiger. He also went to Kreiger's place of business, and importuned him to discontinue his relations with his wife. Kreiger threatened to shoot appellee if he did not leave his saloon immediately. Within two weeks afterward appellant filed her bill for divorce. Eleven witnesses called by appellee, and who appear to be entirely disinterested, testified to circumstances which show the intimate relations between appellant and Kreiger during the year 1907. A number of these witnesses testified that Kreiger was a frequent visitor at the Zimmerman home, especially during the summer and fall of 1907, while appellee was away at work; that he usually came during the afternoon, when all members of the Zimmerman family except appellant and her infant child, a boy then about three years of age, were away from home; and that at times he sat on the porch and at other times in a swing with Mrs. Zimmerman. Other witnesses testified to seeing Kreiger and appellant walking together on the streets of Joliet during the forenoon, in the afternoon, and in the evening. Several of the witnesses had seen them going in and coming out of nickel theaters. One witness had seen Kreiger walking along the street with appellant, holding her hand. He had also seen them going into an alley, and entering the side door of a saloon together. Another witness saw Kreiger enter the Zimmerman premises through an alley and back gate shortly after midnight during the fall of 1907, at a time when the appellee was engaged in night work at the pumping station. Still another witness, a neighbor, saw appellant and Kreiger enter and lock the barn on the Zimmerman premises, where they remained about an hour. Kreiger became the proprietor of a saloon the summer of 1907. Before engaging in the saloon business he conducted a restaurant in Joliet. Kreiger's sister, who was called as a witness by the appellee, testified that during the spring of 1907 the appellant frequently went to Kreiger's restaurant, and usually stayed there an hour or two. This witness...