Richardes v. Richardes

SEAWELL, J.

This appeal is from a judgment of non-suit.

The action was brought by plaintiff to obtain a decree of divorce from defendant on the ground of wilful desertion. Said desertion is predicated on the offers of plaintiff, alleged to have been made in good faith following a long voluntary separation, to resume matrimonial relations as prescribed by the Civil Code, section 101, but which offers of reconciliation and restoration defendant refused to accept, as hereafter will appear.

Appellant and respondent intermarried at the city of Montreal, Dominion of Canada, May 22, 1894. Shortly thereafter they removed to Brighton, England. Three

[394]

daughters were born in wedlock. Suspicions which lurked in the mind of appellant as to the paternity of the last child born at Brighton in 1901, two months after appellant had left the family domicile, gave rise to discord which resulted in appellant’s departure for New Zealand, leaving family and all behind. The appellant and respondent met many years thereafter in California, where he unsuccessfully prosecuted in 1922 and 1924, respectively, two divorce actions against his wife, one on the ground of cruelty, and the other on the ground of desertion. Neither the judgment-rolls, nor any of the pleadings or proceedings had in said other cases were offered or received in evidence in this action. No witnesses were heard in the instant case except the appellant and witnesses called on his behalf. Consequently the testimony of himself and his witnesses stands uncontradicted.

A motion for a nonsuit is in effect a demurrer to the evidence and the court must assume that all the evidence received in favor of the plaintiff relevant to the issues is true. All presumptions, inferences and doubtful questions must be construed most favorably to the plaintiff’s case. The rule is so well settled that it is not necessary to enlarge upon it.

From the evidence before us appellant was residing with his family at Brighton,. England, in 1901. The wife became pregnant. From his neighbors or from some other source he became suspicious that she was intimate with a man named Gay. The matter seems to have come to a head in the shape of a personal encounter in which the three were embroiled. Gay and the wife, in turn, had the appellant arrested on separate charges of assault. The wife was a witness against appellant, but he was acquitted on both charges. She also told the head of the railroad company which employed appellant that her husband had in his possession stolen property belonging to the company. She caused his discharge. During this period of storm and stress appellant informed his wife that he was going to New Zealand where' his brother was located. The wife replied that she “didn’t care a damn where I went, so long as I was out of her sight”. In 1901, upon his arrival at New Zealand, he wrote to his wife, telling her of his arrival, and also