
    Maria C. Olson, Appellee, v. William Olson, Appellant.
    Divorce: cruel and inhuman treatment: evidence. A petition for divorce on the ground of cruel and inhuman treatment is not supported by proof of acts which in no manner endanger the health or life of the plaintiff, but show simply incompatability of temper. Evidence held insufficient to establish cruel an inhuman treatment.
    
      Appeal from Buena Visla District Gourt.— Hon. W. B. Quarton, Judge.
    Thursday, April 5, 1906.
    Action for a divorce. Decree dissolving the matrimonial bonds, and defendant appeals.—
    
      Reversed.
    
    
      J. E. Buland and F. F. Faville, for appellant.
    
      Made & De Land and H. F. Schultz, for appellee.
   Deemer, J.

A decree of divorce is sought by plaintiff on account of the alleged cruel and inhuman treatment by defendant, her husband, which treatment it is claimed endangered plaintiff’s life and health. The treatment complained of is said to have been the use of vile and indecent names, threats to kill, and an unlawful assault by defendant, some time in May of the year 1901. Regarding the use of indecent, vile, and threatening language, the testimony is not sufficient whereon to base a decree for plaintiff. Her testimony refers to the use of vile names on two occasions; but in this she is uncorroborated, and her testimony is explicitly denied by' defendant. As to threats. Of those relied upon, the first to which reference is made did not relate to plaintiff, but to an adult son by a former marriage; and the second, while it may have related to plaintiff, was not such as to entitle her to a divorce. At most, it was nothing more than a threat “ to fix ” her, which, under all the cir-circumstances, did not rise to sufficient dignity to be a menace to plaintiff’s life or health. There is testimony to the effect-that defendant at one time called plaintiff a d — d liar; but this is not relied upon by her as endangering either health or life. Indeed there is some ground for believing that part of the appellation was true.

The main incident relied upon happened a few months before the bringing of this suit. It seems that defendant had gathered up and placed in his buggy a lot of empty bottles and cans which he was proposing to take to the dump grounds.” Plaintiff appeared while defendant was getting his horse ready to hitch to the buggy and she insisted that the bottles and cans be thrown into the alley, and was moving toward the buggy with spade in hand in order to carry out her desires. Defendant took her by the arms, and forced her into the buggy shed, closing the door upon her. She escaped from this shed, and defendant then pushed her into the bam or stable, where she secured a pitch fork. Discretion on his part proving the better part of valor, he retired from the stable, and again closed the door upon her, and as we understand asserted his headship of the family by having his own way as to the disposition of the bottles and cans. There is some testimony tending to show that during the melee, defendant threw plaintiff to the ground, but no evidence that he used any more force than was necessary to cause plaintiff to desist from her efforts to remove the refuse material from the buggy. Plaintiff’s arms were somewhat brused and blackened as a result of the contest, but her life was at no time seriously in danger. She claims that at another time, defendant struck her while he was intoxicated, but in this she is entirely uncorroborated; and defendant squarely denies the assault. The testimony shows that plaintiff is of a quarrelsome disposition, that she has had a part in and so far as possible held her own in all her difficulties with her husband. Both she and her husband had had experience on the matrimonial sea before assuming their present relations, and in the storms they have experienced since becoming busband and wife each seems to bave bad a part. Neither bas been faultless; and, while we do not of course approve defendant’s conduct, much is shown to palliate and excuse it. Plaintiff bas an adult son, with whom defendant bas bad trouble, and it may be that bis influence bas bad much to do with tbe situation as it now exists. Most of plaintiff’s troubles bave been of her own creation, and tbe remedy, .therefore, is not through tbe divorce court, but in change of conduct and demeanor toward her busband. In him, too, there is room for improvement. A little patience, a spirit of forgiveness, and a measure of toleration for tbe frailties of human nature will do more for these parties than a decree of divorce.

Incompatibility of temper is no ground for divorce; and, while, we may not compel busband and wife to live together, we can at least make it so difficult to obtain a divorce as to encourage another effort at observance of tbe matrimonial vows. Much of tbe testimony offered was from incompetent witnesses. That is to say, they were small children, and it was not shown that they knew tbe nature of an oath. Tbe case does not involve any doubtful propositions of law. But, if support be needed for our conclusions, it will be found in Sylvester v. Sylvester, 109 Iowa, 40; Wells v. Wells, 116 Iowa, 59; Owen v. Owen, 90 Iowa, 365; Knight v Knight, 31 Iowa, 451; Blair v. Blair, 106 Iowa, 269.

Por tbe reasons pointed out, tbe decree must be reversed, and tbe cause remanded for one in harmony with this opinion.— Reversed and remanded.  