Polk v. Polk

WHITE, J.

This is an action for divorce wherein plaintiff sought dissolution of his marriage to defendant upon the ground of extreme cruelty. (Civ. Code, sec. 94.) An answer was filed admitting all the allegations contained in the complaint save and except the one which charged the wrongful infliction of grievous mental suffering upon plaintiff by the answering spouse. At the trial plaintiff introduced evidence of his marriage on January 19, 1910; that the parties thereto separated May 10, 1939; that three children were born as the issue of said marriage, all of whom have reached their majority. The plaintiff testified, and was corroborated in his testimony, that on an occasion in 1937, while traveling on a

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railroad train, plaintiff was standing in the aisle assisting two ladies with their baggage, when his wife, without saying a word, struck him in the face, in the presence of many passengers in the car. He further testified that his occupation was that of motorman, and that constantly upon his return home from his duties his wife would charge him with infidelity. He further testified that defendant never prepared meals for him, and upon returning home after working all night it was necessary for him to prepare them himself. Another incident testified to by the plaintiff occurred during a visit of his sister. On the last day of his sister’s visit, while she and her family were at the home of plaintiff and defendant, he desired to spend the last day of his sister’s visit with her, but his wife insisted that he take her out and compelled him to remain away from home until about thirty minutes before his sister and her family were required to leave. Plaintiff testified to a severe injury inflicted upon him by his wife on another occasion in the early part of 1938, from which injury he suffered for about six months. In explanation of why he continued to remain at the family home during the course of what he termed “many years” of alleged cruel and inhuman treatment, plaintiff testified that he did so “solely for the purpose of continuing the education of my children and until my son graduated from college, never at any time forgiving her for any of her acts, but only for the purpose of doing that which I could for the welfare of my children, and as soon as my son finished college I left the house and continued separate and apart since that time.”

At the conclusion of plaintiff’s case defendant made a motion for a nonsuit, which was denied. In presenting her defense, the defendant was the sole witness in her behalf. She testified: “The testimony of my husband was true, but I was in a nervous and excited condition at the time each of the matters complained of by him occurred; that he never forgave me for any of my actions, and on the 17th of April, 1940, I wrote him to forgive me and come home.” Upon being shown a letter, the defendant wife identified it as the letter referred to in her testimony, and the same was admitted in evidence. It reads: “Dear Luther: Please call off that divorce suit and come home as we all love you and don’t want to lose you or fight you. Forgive me of all I said or done. Anna.”