Opinion by
Mr. Chief Justice Moore.
1. The parties were married December 20, 1906, in Klamath County, Oregon, where they have ever since resided. The plaintiff’s daughter by a former marriage lived with them on their ranch about ten miles from Klamath Falls. At the time of the trial, the plaintiff was 47 years old. She had been in ill health for several years, and suffered from an ailment which, in the opinion of her physician, could have been cured by a minor operation. This infirmity with sex frailty at her period of life induced extreme nervousness, which at times prostrated her. Her hearing is also considerably impaired, and, like all persons similarly afflicted, she is quite sensitive on the' subject and is liable to misconstrue what is said in her presence. The defendant did not seem to have much sympathy for the plaintiff in consequence of her nervous condition, or appear to accede to her wishes in the general management of their home. Thus, on September 8, 1911, Mrs. Ream, preparing to board a lady teacher, moved a bed from a room which she and the defendant occupied, and had set it up in another room which was occupied by her daughter, when he, returning to the house and seeing what the plaintiff had done in his absence, remarked: “This has got to be stopped right at once. I want that bed. It is coming right back in here. ’ ’ She replied: “ No, sir; it is not. ’ ’ He said, “It will,” and started toward the door, which she closed. He forced the door open and she took hold of the bed trying to prevent its removal, when he grasped and forced her into a chair, making her wrists black and blue. He admits this encounter, but'says [177] that, when it occurred, the bed had not been set up in the room to which it had been taken. His chief reason for such conduct was an objection that Mrs. Ream was giving to her daughter the best furniture in the house, reserving for herself and him the poorer household goods.
The plaintiff testified that on March 24, 1913, she had been assisting in putting up meat, working so hard that she was scarcely able to stand, and at the dinner-table she said to the defendant that other women, after performing the necessary housework, found leisure for rest and reading, but she could not do so; whereupon he informed her that, if she did not get in and do the work, she would find herself getting up out in the road. The defendant admits he made this remark, but asserts it was uttered in their bedroom and was meant by him as a joke and so understood by her.
Mrs. Ream testified that, after she was ill at the ranch about four days, the defendant took her to Klamath Falls, and, though she was then suffering severely and in great agony, he did not inquire if she would employ a physician or engage anyone to wait upon her, and that he never called upon her while she was then ill. She also stated upon oath that, when the defendant came' into their home, he made slighting remarks to and about her. She admitted on cross-examination that she often replied to him in a similar manner, but that she never employed any insulting language in response to his disrespectful observations. She further testified that the defendant told her to leave his bed and never come near it again, saying: “I am through with you now and for always.” Mr. Ream stated upon oath that he was in doubt as to whether or not he made this declaration. He testified, however, that the plaintiff slept in his room on a cot [178] until she moved it into another bedroom after a hired girl left. Mrs. Ream further testified that on April 15, 1913, the defendant told her to shut her mouth or he would slap her face, at the same time waving his arms in a threatening manner, thereby causing her to believe he would put his menace into execution. The defendant’s explanation of this remark and demonstration is that, a hired girl having left, a letter came to the ranch for her; that he readdressed the envelope, whereupon Mrs. Ream remarked: “You have sent the hired girl away. You want to send my daughter away and then get Mr. and Mrs. Lewis to come here.” In reply to this observation he said: “Clara, many men would slap you for that: that is, for what you are- saying. ” “I drew my hand back, but we were six feet apart.”
Mrs. Ream’s malady and its resulting nervousness undoubtedly tended to make her suspicious. She believed the men employed by the defendant to assist in the farm work were in league with him to annoy her. Thus, on May 15, 1913, when she was visiting at the home of a neighbor, Chauncey Standish, one of the defendant’s employees, called and after some conversation said to the plaintiff: “You lie right there. I will make you swallow some of these things you have been saying.” She testified that, on her return that evening, she reported what the hired man had said to her to the defendant, who remarked: “I suppose you did lie, or he would not have said so.” The defendant stated upon oath that he was not informed of such language on the part of Standish until about a week after it occurred, when he discharged him. The plaintiff testified that, at-the breakfast-table, August 18, 1913, the day she finally left the ranch, Harry Blair, another employee, made a slighting remark to her [179] daughter, whereupon the witness remarked to him: “You keep quiet and let her alone; she is not saying anything to you or about you, in. any way or shape. You should attend to your own affairs. You are mixing in family affairs here which you have no right to do whatever”; that Mr. Blair replied: “You shut your mouth and tend to your own business ’ ’; that Mr. Ream was present and said to his employee: “Gro ahead and say what you please, I am here”; and that the defendant’s remark made her sick.
Mr. Blair, as the defendant’s witness, testified that Mrs. Ream had informed him she was having trouble and expected to leave the ranch in the fall of 1913; that on August 18th of that year, the day she finally left, the defendant told him to say nothing to her; that at the table Mrs. Ream informed the witness he was the cause of her leaving; that to this observation the employee stated: “I am going to tell you what is the cause of your leaving. It is your untruthfulness and deeeitfulness. That is the whole cause of your leaving.” The witness continued: “She called me a big idiot in two instances.” Mr. Ream, referring to the conversation last detailed, testified that he cautioned Blair before he went into the house that morning; that the plaintiff told this employee he was the cause of her leaving, and that the witness was upholding him.
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Opinion by
Mr. Chief Justice Moore.
1. The parties were married December 20, 1906, in Klamath County, Oregon, where they have ever since resided. The plaintiff’s daughter by a former marriage lived with them on their ranch about ten miles from Klamath Falls. At the time of the trial, the plaintiff was 47 years old. She had been in ill health for several years, and suffered from an ailment which, in the opinion of her physician, could have been cured by a minor operation. This infirmity with sex frailty at her period of life induced extreme nervousness, which at times prostrated her. Her hearing is also considerably impaired, and, like all persons similarly afflicted, she is quite sensitive on the' subject and is liable to misconstrue what is said in her presence. The defendant did not seem to have much sympathy for the plaintiff in consequence of her nervous condition, or appear to accede to her wishes in the general management of their home. Thus, on September 8, 1911, Mrs. Ream, preparing to board a lady teacher, moved a bed from a room which she and the defendant occupied, and had set it up in another room which was occupied by her daughter, when he, returning to the house and seeing what the plaintiff had done in his absence, remarked: “This has got to be stopped right at once. I want that bed. It is coming right back in here. ’ ’ She replied: “ No, sir; it is not. ’ ’ He said, “It will,” and started toward the door, which she closed. He forced the door open and she took hold of the bed trying to prevent its removal, when he grasped and forced her into a chair, making her wrists black and blue. He admits this encounter, but'says [177] that, when it occurred, the bed had not been set up in the room to which it had been taken. His chief reason for such conduct was an objection that Mrs. Ream was giving to her daughter the best furniture in the house, reserving for herself and him the poorer household goods.
The plaintiff testified that on March 24, 1913, she had been assisting in putting up meat, working so hard that she was scarcely able to stand, and at the dinner-table she said to the defendant that other women, after performing the necessary housework, found leisure for rest and reading, but she could not do so; whereupon he informed her that, if she did not get in and do the work, she would find herself getting up out in the road. The defendant admits he made this remark, but asserts it was uttered in their bedroom and was meant by him as a joke and so understood by her.
Mrs. Ream testified that, after she was ill at the ranch about four days, the defendant took her to Klamath Falls, and, though she was then suffering severely and in great agony, he did not inquire if she would employ a physician or engage anyone to wait upon her, and that he never called upon her while she was then ill. She also stated upon oath that, when the defendant came' into their home, he made slighting remarks to and about her. She admitted on cross-examination that she often replied to him in a similar manner, but that she never employed any insulting language in response to his disrespectful observations. She further testified that the defendant told her to leave his bed and never come near it again, saying: “I am through with you now and for always.” Mr. Ream stated upon oath that he was in doubt as to whether or not he made this declaration. He testified, however, that the plaintiff slept in his room on a cot [178] until she moved it into another bedroom after a hired girl left. Mrs. Ream further testified that on April 15, 1913, the defendant told her to shut her mouth or he would slap her face, at the same time waving his arms in a threatening manner, thereby causing her to believe he would put his menace into execution. The defendant’s explanation of this remark and demonstration is that, a hired girl having left, a letter came to the ranch for her; that he readdressed the envelope, whereupon Mrs. Ream remarked: “You have sent the hired girl away. You want to send my daughter away and then get Mr. and Mrs. Lewis to come here.” In reply to this observation he said: “Clara, many men would slap you for that: that is, for what you are- saying. ” “I drew my hand back, but we were six feet apart.”
Mrs. Ream’s malady and its resulting nervousness undoubtedly tended to make her suspicious. She believed the men employed by the defendant to assist in the farm work were in league with him to annoy her. Thus, on May 15, 1913, when she was visiting at the home of a neighbor, Chauncey Standish, one of the defendant’s employees, called and after some conversation said to the plaintiff: “You lie right there. I will make you swallow some of these things you have been saying.” She testified that, on her return that evening, she reported what the hired man had said to her to the defendant, who remarked: “I suppose you did lie, or he would not have said so.” The defendant stated upon oath that he was not informed of such language on the part of Standish until about a week after it occurred, when he discharged him. The plaintiff testified that, at-the breakfast-table, August 18, 1913, the day she finally left the ranch, Harry Blair, another employee, made a slighting remark to her [179] daughter, whereupon the witness remarked to him: “You keep quiet and let her alone; she is not saying anything to you or about you, in. any way or shape. You should attend to your own affairs. You are mixing in family affairs here which you have no right to do whatever”; that Mr. Blair replied: “You shut your mouth and tend to your own business ’ ’; that Mr. Ream was present and said to his employee: “Gro ahead and say what you please, I am here”; and that the defendant’s remark made her sick.
Mr. Blair, as the defendant’s witness, testified that Mrs. Ream had informed him she was having trouble and expected to leave the ranch in the fall of 1913; that on August 18th of that year, the day she finally left, the defendant told him to say nothing to her; that at the table Mrs. Ream informed the witness he was the cause of her leaving; that to this observation the employee stated: “I am going to tell you what is the cause of your leaving. It is your untruthfulness and deeeitfulness. That is the whole cause of your leaving.” The witness continued: “She called me a big idiot in two instances.” Mr. Ream, referring to the conversation last detailed, testified that he cautioned Blair before he went into the house that morning; that the plaintiff told this employee he was the cause of her leaving, and that the witness was upholding him.
The plaintiff was jealous of her husband, and probably this envious suspicion was caused by her illness and its consequent nervousness and her impaired hearing. She testified that, on April 17, 1913, she discovered the defendant and a hired girl at the ranch in the separator-room, the door of which was then closed; that they remained in the room about ten minutes, and, as he came out, the witness inquired what they had been doing, to which he replied that it was none of [180] her business, that he was running the house, and she could keep her mouth shut. The testimony of the defendant and of the girl referred to is to the effect that he went into the room mentioned to repair the separator which he had taken apart for that purpose; that the girl, not knowing he was in that place, entered it to get some potatoes to cook, and seeing the exposed machinery she examined it and for about eight minutes remained in the room, the outer door of which was during all that time open. It is not supposed for a moment there was any impropriety in the conduct referred to. The only thing for which the defendant is at all censurable was his answer to the plaintiff’s inquiry as to what he and the girl were doing in the room as hereinbefore specified.
The testimony of the defendant’s witnesses tends to show that the plaintiff objected to his playing cards at their home with other women, even when she was engaged in the game at the same table.
It is believed that a fair examination and consideration of all the testimony will show that the plaintiff’s temper and disposition were not the best at all times, but that her peculiar temperament was due to ill health which superinduced extreme nervousness, and that her defective sense of hearing also caused misunderstandings; that the defendant, knowing her infirmities, did not extend to her that kindness and forbearance which her then physical and mental condition demanded; that he neglected her when she was sick; and that he addressed language and made demonstrations toward her when she was ill that amount to cruel and inhuman treatment, entitling her to the divorce and to an undivided one third of his real property.
■ This conclusion is reached without considering any of the evidence that was received upon a motion to open [181] the cause, after it was submitted, for the purpose of taking testimony as to the alleged conduct of the defendant toward the plaintiff, occurring after the suit was instituted, without filing a supplemental complaint.
The plaintiff asserts the defendant is indebted to her in the sum of about $400 for labor which she performed for him prior to their marriage, and that he also owed her about $1,900 for borrowed money. If these sums are collectable from him, a judgment therefor will, with the payment of his other obligations, so exhaust his property as seemingly to render it inequitable that he should pay to her the further sum of $500 as alimony.
The decree appealed from will therefore be modified so as to eliminate the award of $500, but in all other respects affirmed. Affirmed.
Mr. Justice Benson and Mr. Justice Eakin not sitting.