The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1910-02-01

i Z
/ of the estimated wealth and earning
capacity of defendant for the undoubt-
ed purpose of basing an application
for temporary and permanent alimony
| In her contemplated divorce suit.
Shortly after her return to Fargo and
| without the slightest warning to de-
| PENDANT she left defendants home and
went to the home of her parents, talk
| Ing with her their two children. Bruce
and John, and on the same day caused
to be served on defendant the sum-
mons and complaint herein in which
she accuses the defendant of the many
acts of cruelty hereinbefore set out
If defendant was wholly blameless and
there were no mitigating circum-
stances, plaintiffs conduct would UNI
tdoubtedly constitute extreme cruelty
emitting him to dissolution of the
marriage he prayed for, unless PLAINTIFF
has succeeded in establishing her first
cause of action.
Courts Conclusion on Cross Sill.
Upon defendants last counter-clain.
which charges plaintiff with willful de-
sertion on Nov. %, 1906 we are inev-
| itably forced to the conclusion that de-
| PENDANT Is entitled to the relief prayed
for unless plaintiff has successfully
established her first cause of action
which we will hereafter consider.
1t is admitted that plaintiff on said
date took their two children, Bruce
and John, and went to her parents
home, where she has ever since resid-
ed, and 1t Is perfectly apparent that IT
Is and has been, at all times since, her
full intention never to return to her
Husband. Not only this, but 1t is un-
disputed that she took her departure
as aforesaid without the slightest prev
ious warning to defendant and with a
deliberate purpose of commencing this
action which she and her father. for
many months prior thereto, had been
carefully contemplating and making
preparations for bringing. 1t is i'm
possible to imagine stronger case of
desertion unless it can be said that
such conduct on plaintiffs part was
legally justified under the evidence, in
which event defendant, and not plant
| iff, would be guilty of legal desertion.
We are unable, for reasons already
given, to reach the latter conclusion
from this record, unless, as before
stated, plaintiff has succeeded in es-
Charge of Morphine Intsmperanes.
This. conclusion brings us to a con-
sideration of the merits of PLAINTIFFS
appeal. Such appeal challenges the
correctness of the trial courts findings
and conclusions upon the issue of de-
PENDANTS habitual intemperance in the
use of morphine. 49, .. ..
Owing to the length already of this
opinion we shall dispose of this feature
| OF the case as briefly as possible. De-
PENDANT Is charged with the use of
morphine and other like narcotic drugs
to such a degree as to disqualifv him
great portion of the time from prop
erly attending to business and which
alleged habitual intemperance has in
fiicted upon plaintiff "a course Of great
mental anguish. While it may not be
material from a legal standpoint we
think the Tecordefulfy Justifies the as
sertiop that but slight, If any effort
was ever pUt forth by plaintiff to save
her husband, for when she professe6
such devoted affection, from acquiring
the terrible habit of which she now
complains, her apparent desire being
to secure evidence which would con-
Wet him of being guilty of such habit.
She manifested no disposition to for
give and forget. The. contrary is true
of defendant, but his overtures for re-
concilliation were spurned by her and
her parents.
Upon this appeal counsel for plaintiff
contend for q construction of orr
statute-Section 4054 r. C. 19O5-which.
will entitle plaintiff to a divorce, not
withstanding the fact, If it be fact
that the morphine habit was caused
by reason of the necessary use Of such
drug to alleviate pain and unendurable
suffering. We do not thus construe the
law and In our opinion such con-
struction would do violence to the stat
ute. If such a habit Is reasonably and
necessarily caused by the Conditions
over which the victim has NO control
1t would be rnanifestly harsh and nm
reasonable to subject such partv tn
such undeserved punishment It wouId
in effect, be infficting punishment upon
the innocent Such a condition Is no
less innocent, from the standpoinnt of
the victim, than insanity Both result
from disease We shall not ATTEMPT a
review of the evidence bearing upon
this issue. 1t is too voluminous to
permit even of a cursary review there
of, 1t is sufficient to- say that after
a careful reading of the same we are
fully convinced that the learned trial
courts findings are in accord with the
facts as we view Them
Tempiston's Findings.
(The findings Judge Templeton made
on the charge of morphinism. and ap-
proved by this opinion are as follows.
G. That the defendant has not been
guilty of habftual tntemperance in the
use of morphine or other like narcotic
drugs, for more than a year prior to
the commencement of this action, or at
all, as alleged in paragraph four Of The
complaint
q. That for many years past the
defendant has been afflicted with the
physical malady known as chronic in
terstitial nephritis, and more common
" known as Briglt's disease; tina.
said malady Is incurable and is attend
ed by recurring uraemic attacks, which
endanger the defendants life and also
cause great suffering: that said attacks
occur at irregular intervals. sometimes
few days apart, and sometimes sew
eral weeks apart, and PROSTATE him.
and that when thus Frustrated he suf-
fers excrutiating and uncomfortable
physical pain; that upon such occas
ions, and no others, defendant has been
for many years accustomed to take
small injections of a special prepara
tion of morphine. the same being thus
taken for the purpose OF the recognized
valuable therapeutic action of the drug
upon the system. as we'll as the ailevia-