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

divorce upon her first cause OF ac-
tion, to~wit: Habitual intemperance
such object appears from the testi-
mony to be uppermost in the contem.
platton of plaintiff and her counsel
throughout the proceedings.
In concluding what we have to say
upon this branch OF defendants APP
peal we feel constrained to diner with
the learned trial court upon the facts
presented, and feel obliged to say that
In our judgment the evidence does no;
warrant the findings and conditions
the correctness of which are challenged
by appellants counsel.
Reviews Evidence on Cross Bill.
This brings us to consideration OF
the second branch of defendants APP
peal, namely, his counter claims for a
divorce from plaintiff on the grounds
OF extreme cruelty and willful deser-
ton.
In considering this feature we shall
assume that the trial court properly
denied any relief to plaintiff on her
first cause of action, the correctness
of which holding we will consider later
Does the evidence warrant findings
of extreme cruelty or wilIful desertfon
on plaintiffs part? This question was
answered in the negative by the trial
court, although that court expressly
found as a fact, that plaintiff did
charge defendant with being criminally
intimate with other women" And. al
so, THAT the ladies with whom plain
tiff accused the defendant of having
criminal intimacy, were and are of the
highest standing in the city of Fargo,
and are of unimpeachablec character,
and in every way above suspicion"
The learned court evidently took the
position, which is not without some
support in the evidence that defendant
relations with three ladies were not
wholly free from criticism and that he
is not entirely blameless In the prem
Uses. In other words, that there are
mitigating circumstances in plaintiff Is
favor sufficient to warrant the denial
to defendant of any affirmative relief
under his first counter claim. While,
for like reasons, we have concluded
not to interfere with the trial courts
disposition of this feature of defend
ants appeal, we deem 1t proper to say
that 1t is established by the record be-
yond question and to, our entire salts
faction that plaintiff openly accused
d e { e n d a mt of criminal in
timacy with another woman. This is
shown by the witnesses Sundberg, Mrs.
Kitely and Dr. barrow, and while dis
puted by the plaintiff, she does not
deny that she accused, him of intimacy
with such women but denies that she
ever, in effect, charged criminal in
timacy. We cannot believe that all
three witnesses, even though strong
partisans in defendants favor, DELHI
erately falsified regarding plaintiffs
statements to them as above referred
to. What possible motive could thew
have had for so doing? Plaintiff ex-
pressly disclaims any BELIEF as 10 the
truth of such accusations but on the
contrary she and her witness, Mrs.
Grant, as we'll as every person express
ing any opinion on the subject, UNI
equtvocaly swear that the, character
or thtsladyy whom the witnesses Sund :
berg, Mrs. Kitely and DIR. barrow pos
itively swear that the plaintiff accused
of being defendants mistress. is abso-
lutely above reproach. As testified. by
Mrs Grant in effect, there was no lady
in Fargo whose reputation was Of a
higher character than such lady. We
quote. from her testimony as follows:
Q. You didn't know a lady in this
town whose reputation was of a higher
character than that of the third one OF
these ladies, did you2 A. No. sir.
Q. And her name is absolutely beyond
suspicion as to her moral purely? A.
think SO. @. And didn't anybody, in
town question that statement? A.. ]
think not. Mr.. Watson. @. If YOU
dragged this town through with a fine
tooth comb, you could not find a lady
regarding whom the breath of suspic-
ion would be less pointed than against
the third one of these ladies? A. /
think not. @. That is true? A. /
think SO, Mr.. Watson. @. So that the
circulation of these stories. by whom
soever they were circulated. was abso-
lutely without foundation and was a
gross outrage upon both the doctor and
this lady? A. Why, certainly"
We are, therefore, forced to..the in
evitable conclusion from the evidence
that plaintiff made the accusations
complained of. There no doubt was
furnished by defendant some excuse or
justification for plaintiff becoming
somewhat suspicious or jealous Of this
lady; but in view of plaintiffs sworn
statements that she never believed
there were. any criminal relations be-
tween: them she was certainly not JUS
titled i'm making such grave and serious
accusations. Such accusations natur-
ally caused public scandal and could
not but result in causing him grieyous
mental suffering in bringing him into
public reproach. scorn and obloquy.
and this, the plaintiff was bound to
know.
In the light of defendants serious
physical condition, OF which plaintiff
was fully aware. 1t was doubly cruel
on plaintiffs part to treat him as she
unquestionably did treat him, not only
in this but in many other respects.
That plaintiff falsely accused defend
ant of assault and battery against her
person by striking or kicking her while
she was large with child is even adj
mitted by plaintiff. and this. above all
other charges, would surely bring de-
PENDANT into bad repute and public
scor'n, and the testimony disefoses that
when defendant learned such accusa-
ton he fell on the bed and wept like
q child The evidence also discloses
that while defendant who, as before
stated, was afflicted with an incurabie.
and at times an uncomfortable malady,
was practicing his profession. when, as
his physician says, and as the lower
court in effect found, he should be en-
joying absolute rest and. quiet. and was
furnishing. plaintiff home with all
the comforts and Injuries she could
desire, she secretly employed attorneys
early in 1905. and later installed in