Palmer v. Palmer

KERRIGAN, J.

This is an appeal by the plaintiff in an action for divorce instituted by her against the defendant, her husband, alleging acts of cruelty and adultery upon his part.

At the conclusion of the evidence for plaintiff the court directed that judgment be entered in favor of the defendant, from which judgment the plaintiff prosecutes this appeal.

[121]

[1]

It seems quite clear from the course pursued by the trial judge during the introduction of plaintiff’s evidence, and particularly from his remarks at the conclusion thereof, that he was of the opinion that the plaintiff was seeking a divorce on the single ground of the defendant’s adultery, and that the evidence was insufficient to sustain a decree in her favor upon that ground; whereas in truth her action was also based upon the ground of physical and mental cruelty, which the evidence abundantly established, and, in the absence of evidence on the part of the defendant in contradiction thereof, left the cause in such guise that the action of the trial court in dismissing the suit was erroneous.

The plaintiff and defendant were married in February, 1894, and at the time of the trial there were living as the issue of this marriage four children—E'thel, aged sixteen; Chester, aged thirteen; Oran, aged twelve years, and Paul, aged five years. The plaintiff testified to various incidents occurring between herself and the defendant, some of which we will refer to: The defendant is a member of a so-called religious sect known as “holy rollers” and a preacher and expounder of its doctrine. On one occasion (we will hope when he was off duty) he tore off all the plaintiff’s clothes. Upon another he dragged her out of bed, threw her across the room and then drew her out on to an adjoining sleeping porch, took off her gown and then beat her with his clenched fist, striking her upon the breast. As a result of this struggle she was sore all over for several days, and later the pain in her side and breast became so serious as to necessitate a surgical operation by removing the breast. At another time the defendant went to plaintiff’s bedroom in company with a woman (named as the corespondent in this ease), a Mrs. Walker, and awakened the plaintiff. Learning that the defendant desired to make some sort of confession to her, the plaintiff objected to the presence of Mrs. Walker, who thereupon withdrew, and the defendant then got down upon his knees at the bedside of his wife, and informed her that Mrs. Walker had refused to become a member of their church, which she contemplated doing upon the following day, unless he had confessed to the wrongs he had done his wife, whereupon he stated that he had trifled with and been intimate with