, 1891-12-11
A Wife May Testify. in Her Own
Behalf.
The Supreme Court Deems Her Tes-
tinoMY Sufficient to WAR
RANT n Senaratfnu
rant a Separation.

rant Separation.
TThe DAILY and WEEKLY TRIBUNE will
print from time to time all the decisions ot
the supreme COURT
Nellie Lee. Appellant, VS.. Theodore M
Lee, Respondent. No. 278.
This was an action brought by appellant
against the respondent to obtain a decree
of divorce, on the gronnd of cruelty and
habltpal drunkenness. The, cause was
tried by the court, and after hearing the
testimony Of the plaintiff, and her wit.
nesses, counsel for defendant, without in
Producing any testimony on behalf OF
the defendant, moved the court tn
dismiss the action on the gronud
that the evidence was insufficient to enEi.
tie the plaintiffto the relief demanded. The
court granted the motion, and accordingly
gave Judgment dismissing the action. Tn
SO doing appellant claims the court COM
mitted error.
1t IS suggested by counsel for appellant
that the learned judge who tried the cause
was OF the opinion that the pleadings in
an action for divorce are evidence to the
same extent as they formerly were in the
ecclesiastical and chancery courts, and that
the plaintiff in order to succeed, must
prove every material fact by testimony in
addition to her own. If such was the case,
the court was in error, for by our statute
the pleadlngs are not deemed proof of any
fact or facts therein contained. See code
sec. TAI.
The law makes the wife a competent
witness in her own behalf in an action for
divorce, and the court must receive her
testimony as it would that Of any other
witness in civil action and it must be
presumed that she testifes to the truth,
in the absence of anything showing the
contrary.
The testimony of appellant shows that
for some years the respondent has been in
the habit Of becoming intoxicated at fre-
quent intervals, and SO remaining for a
period OF several days together, on which
occasions his conduct towards her has
been extremely insulting and abusive !:
thai he often accused her of infdelity.
without cause; that he frequently threat
ened her with violence; and on one occa-
sion violently assaulted her, threw her on
the lounge, strained her back" put one
of his arms across her neck and choked
her, and tried to strike her; that at about
the same time he accused her of improner
intimacy with neighbor with whose sick
wife she had spent the previous night, in
order to relieve those of the family who
were greatly fatigued by long and con
stant attendance and waiting upon this
helpless Invalid and that he made the
same accusation to the woman's husband
and brother, both of whom testify to the
fact; and that respondent, while intoxi.
Gated, several timese ndeavored to commit
suicide by taking hydrate Of chloral or
some other poison. That he did take
such drug, as stated by appellant, is also
shown by the testimony of the attending
physician Appellant also testilies that
she was driven from her home through
fear Of violence on the part of her husband.
While it is not the policy of the law or
the practice OF courts to sever the marriage
relation for any but grave causes satisfac-
torily proven we, nevertheless, think that
the testimony presented in the record in
this case, standing, as it does, uncontra-
tradicted, clearly justifes decree of di-
vorce onthe ground ofcruelty. Tosav moth
ing of the alleged personal violence inflicted
by respondent upon appellant, it is hard
to conceive how husband could be more
cruel to a wife, not entirely DEVOID of all
sensibility and womanly instincts, than
to persistently and falsely, and without
just cause, accuse her of unchastity, espe-
cially to or before other persons And the
fact that he does SO in the frenzy Of intoxi-
cation is no mitigation of the offense, for
habitual drunkenness is itself a sufficient
ground for divorce under our statute.
Appellant also complains of the action
Of the court in ordering the filing Of an
amended complaint, after issue was Joined,
and the cause was brought on for trial, on
account of a misnomer Of the plaintiff,
1t seems to be well settled that the obiec-
tion for misnomer is waived by filing an an
sWer to the merits. See Boone, Code Plead
ing, sec. 255. But as the complaint was
amended without any considerable delay,
or expense, we do not see how appellant
was materially injured thereby.
Counsel for appellant further objects to
the ruling of the court in refusing to sus-
tain his motion to strike out pal of defend
ants answer. If this was error, it does not
appear that it was prejudicial to appellant.
It is true that much of that part Of the an
sWer which is objected to might have been
properly omitted, as it does not constitute
a defense to the action, But as it simply
sets forth the physical condition Of the de-
fendant, and the present and prospective
financial condition of the parties facts
which the court would probably ascertain
whether pleaded or not, it is difficult to
see how appellant was injured by the re-
fusal to strike.
1t is further claimed that the court erred
in refusing to modify and correct the judg-
ment for costs against the respondent SO as
to include the fees of officers as well as the
fees Of all of appellants witnesses sub
p@naed at the trial, and a sufficient
amount to enable her to prosecute her ap-
peal.
These matters are largely in the discre-
tion of the trial court. The statute pro-
Yides that, on decreeing or refusing to de-
cree a divorce the court may, in its discre-
ton, require the husband to pay all reason
able expenses of the wife in the prosecu-
ton or defense of her petition And it
would certainly seem that the necessary
expenses of the trial are reasonable ex-
pensis. The court allowed the wife in this
instance, it is claimed, only part Of her
actual disbursements, and refused to allow
T1O Il 10 oor{et.r II
the court required the defendant to pay
fifty dollars for the use of the plaintiff.
And while we might not consider the
whole sum awarded as reasonable, under
the circumstances, if the question were
left to our determination, still, the court
having exercised its discretion in the mat
ter, we do not think its action should be
here reviewed.
Appellant likewise contends that the
court below erred in restricting the proof
to the particular specific allegations of the
complaint. In such cases the rule is that
the proof must correspond with the allega-
tiOns, general and specific, but the evi-
dence is not necessarily limited to the par
tieular facts charged, nor need all the facts
alleged be proved, nor proved precisely as
said. There must not be material varia-
ance between the allegations, and the evil
dence for the plaintiff. No new and sepa-
rate items of complaint, sufficient in
themselves as grounds for divorce, can be
proved, but minor circumstances and gen
eral conduct which disclose the animus of
the defendant in the commission of the
acts charged, may be shown, Browne on
divorce, secs.ss127, 128. And from the ex-
animation of the record we are of the opin-
ion that appellant has no just cause to
complain of the ruling of the court touch
ing the admission of testimony.
b4Ihe judgment of the court below is re-