
    J. F. Bizer, Appellant v. Flora M. Bizer.
    1 3 , 5 Divorce: adultery: Evidence. To prove tbe wife’s adultery, a witness testified to seeing her in the act with one B. Once, the husband, returning to the house unexpectedly in the morning, saw bis wife leaving B’s room in her night clothes. She explained that her daughter was with her, and they had withdrawn on discovering that B. had not arisen. At another time the husband left the wife and B. in the dining room and, returning immediately,. found them in a. bed room. B. was in bed, but the wife came out flushed and, according to her husband, began dusting. She denied this, and explained she was ironing, and merely stepped to the door to talk. Two witnesses testified to seeing the wife- and B. withdrawing to a bed room several times, and closing the door, when the husband was away. Another testified to incriminating confessions by the wife, which she denied, but admitted corresponding with B. On being upbraided by the husband, she' replied that her conduct was no worse than his, and denied guilt, and expressed indifference as to his suspicions. During this time she had refused to cohabit with him. B. denied criminality, but letters were produced from him to her of endearing nature, and he called on her several times with her consent after he was forbidden the house by the husband. Held, sufficient to show the-wife’s guilt.
    4 Opinion evidence. Where a witness in a divorce suit for adultery testifies to looking through a window, and seeing the wife and a man not her husband on a bed, the admission of his opinion that they were having intercourse was proper, as the situation warranted the conclusion.
    
      2 Habitual drunkenness: Evidence. In divorce for habitual drunkenness, the wife testified the husband had not been sober for five* years, and that, at her suggestion, he kept alcohol in the house,, so that he need not go to saloons, but she could only mention two- or three times in fifteen years when he appeared visibly affected. Witnesses had seen him in saloons, and drank with him. One-testified that he got to “feeling good” occasionally, and another' based his judgment that he was frequently intoxicated on his-shambling walk, which was due to locomotor ataxia. His neighbors who knew him from boyhood never heard of his drinking to excess or becoming intoxicated. It was conceded that he used intoxicants as a beverage before and after marriage. Held, not to show that he was an habitual drunkard.
    
      'Appeal from Wapello District Court. — Hon. T. M. Fee;. Judge.
    
      Friday, January 19, 1900.
    The plaintiff prayed for a divorce on the ground that defendant had committed adultery, The defendant based her prayer for like relief on the charge of adultery, cruelty,, and habitual drunkenness. The petition was dismissed, and,, on the cross petition, a decree entered as prayed, on the-finding that plaintiff had, since marriage, become an habitual drunkard. He appeals.
    
    Reversed.
    
      Mitchell <fi Hunter and W. W. Gory for appellant.
    
      MeNett & Tisdale for appellee.
   Ladd, J.

These parties were married in 1882, having a daughter fourteen years old, and a son of twelve years, and separated in August, 1897, — a few days after this action was begun. During the last eighteen months they had not cohabited. She explained that her refusal was because of having contracted gonorrhea from him, and his failure to-produce a doctor’s certificate of his cure as a condition precedent. He denies ever having been afflicted with such a disease, and certainly the evidence falls short of establishing the necessary exposure. Doubtless, the defendant believed she was suffering from such an ailment, but her condition may be fully accounted for without the imputation of wrong doing on her part or that of her husband. The neck of her womb had been lacerated in childbirth, several years, before, and from this the inflammation of the parts and the virulent discharge may have resulted. The physicians agree that leueorrhoea of long standingj which often results-from a tear, can only be distinguished from gonorrhea by the use of the micro-scope. The opinion of the doctor first treating her is fully met by his admissions that this crucial test'was never applied, and the testimony of others-makes-it clear that her disease probably resulted from her condition, and that it was not gonorrhea.. Besides, the evidence does not warrant the conclusion that plaintiff had associated with lewd women. The only testimony tending to sustain this charge is that of a negro clerk of a house of ill-fame. Such a person is ordinarily entitled to little credit. The plaintiff denies the accusation, and is corroborated by the evidence of the defendant tending to shoiv that he could not have been away from home that night. But she states that he admitted having a venereaj disease two years after their marriage, and was treated by a physician of Kalamazoo, Michigan. The plaintiff denies this, but testified to being treated for a nervous trouble, resulting in locomotor ataxia, with which he is mow afflicted. The charges of adultery and cruelty against him are not sustained.

IT. Nor does the evidence warrant the conclusion that he is an habitual drunkard. That he used intoxicating liquors as a beverage before and after marriage is conceded. And the direct testimony of his wife tended to show that he had not been sober for five years, and that, at her suggestion, he kept alcohol in the house so that he need not go to the saloons. But on cross-examination she is able to mention. but two or three occasions within fifteen years when he appeared visibly affected. One Peck based bis judgment that he had been under the influence of liquor frequently on his shambling walk, which resulted from having locomotor ataxia. Others saw him in saloons or drank with him. His near neighbors, however, who had known him since boyhood, and saw^ him almost daily, and the father wfflo reared him, never knew nor heard that he drank excessively or became intoxicated. IN is shown to have been an industrious man, devoted to hie business, and, even if he did get to “feeling good” occasionally, as one witness puts it, this does not stamp him-an babitua.1 drunkard. Nor to he such was ifiessentiai that he he continually in that condition.One may he an habitual drunkard, and yet remain sober for days, and even 'weeks, at a tiiiie. “He is an habitual drunkard,” says the court in Com. v. Whitney, 5 Gray, 85, “whose habit is to get drunk; whose inebriety has become habitual.” In Ludwick v. Com. 18 Pa. St. 172, it is said that to be such he must have the fixed habit of drunkenness. The definition of the term given in State v. Pratt, 34 Vt. 323, is “one who is in the habit of getting drunk, or who commonly or frequently - is drunk.” To the same effect, see Brown v. Brown, 38 Ark. 328; Magahay v. Magahay, 35 Mich. 210; Walton v. Walton, 34 Kan. 195 (8 Pac. Rep. 110); Murphy v. People, 90 Ill. 59; Burns v. Burns, 13 Ela. 376; Mack v. Handy, 39 La. Ann. 497, 2 South 181; Meathe v. Meathe, 83 Mich. 150 (47 N. W. Rep. 109); 9 Am. & Eng. Enc. Law, 814. See Wheeler v. Wheeler, 53 Iowa, 512. In McBee v. McBee, 22 Or. 329 (29 Am. St. Rep. 613, 29 Pac. Rep. 887), the court, after a review of all the authorities, concludes that “there must be frequent and regular recurrence of excessive indulgence in intoxicating drinks to constitute an habitual drunkard. It is not necessary that he should drink liquors to excess, and become intoxicated every day, or even every week, but there must be such, frequent repetition of excessive indulgence as to engender a fixed habit of drunkenness. Occasional acts of intoxication are not sufficient to make one an- habitual drunkard. There must be the involuntary tendency to become intoxicated as often as the temptation is presented, which comes from a fixed habit acquired from frequent a.nd excessive indulgence. The man is reduced to that pitiable condition. in which he either makes no vigorous effort to resist and overcome the habit, or his will has become so enfeebled by the indulgence that resistance is impossible. There is generated'in him, by frequent and excessive indulgence, a-fixed habit of drunkenness, which he is liable to exhibit at any time when the opportunity is afforded. ITe is an habitual drunkard, because he is commonly or frequently in the habit of getting drunk, although he may not always be so. When a man has reached such a state of demoralization that his inebriety has become habitual, its effect upon his character- and conduct is to disqualify him from properly attending-to his business, and, if he be married, to render hie presence-in the marriage relation disgusting and intolerable.” This-is an accurate summary of what is meant by “habitual drunkenness” as a ground for divorce, and we need only add that the -record utterly fails to show- the plaintiff to have-the fixed habit of excessive drinking.

4 5 III. The petition charges the defendant with having-committed adultery with one Burns, who had been employed by the plaintiff for a month in 1890, and during tire seasons of 1891 and 1895. lie purchased the wagons, cans, and good will of the plaintiff’s business of retailing milk in Ottumwa, September 7, 1895, but continued to board with, these parties until the. sale back to the plaintiff, April 7, 1897, when, according to the latter’s testimony, he was forbidden to return to the premises. The wife was advised-of this, but Burns denies it, while admitting knowledge that the husband’s suspicion of undue intimacy with the defendant was the occasion of the purchase. Nevertheless, he called upon her several times thereafter in plaintiff’s absence, and without objection on her part. Knowing, as both did, of plaintiff’s belief in their guilt, these meetings cannot be explained on the score of platonic-friendship, even though there was a disparity in their age's-of fifteen years. They happened to be in the forenoon, when, the plaintiff was delivering milk' in the city, and when the children either happened to be away from home or left soon after his arrival. For some time prior to January, 1897, the plaintiff had noticed that the window blinds toward the barn, raised by him on leaving the house, a little after 4 o’clock in the morning, would be lowered when he returned to breakfast, after milking. Burns had only to care for his-team,and appears not to have arisen as early, and to have-returned to the house sooner. In that month, one Brown, who was then working for the plaintiff, at his direction, watched at the west bedroom window for several mornings. He testified that on the last the cur'tain was not quite down, and he saw Burns and the defend.ant on a bed which was across the window. To the question, “What were they doing?” he answered, “Looked to •me like they were having intercourse.” He remained till they arose, and saw their faces. Whether this was an opinion merely, as suggested, is not very material, as the description of the situation warranted the witness’ conclusion. In Yahn v. City of Ottumwa, 60 Iowa, 429, the court said: “It is competent for a witness to testify to his conclusion, -when the matter to which the testimony relates cannot be reproduced or described to the jury precisely as it appeared -to the witness at the time.” In Carter v. Carter, 152 Ill. Sup. 434 (28 N. E. Rep. 953), a witness was permitted -to testify, from sounds and noises which he heard in an adjoining room, and which could not be described to the jury precisely as they appeared to the witness at the time, that he was of the opinion that the man and woman therein -were engaged in sexual intercourse. Hnless the witness’ -statement is to be received, the fact could not be testified to, except by one actually observing penetration, and we are ■not prepared to indorse such an absurdity. True, Brown, for fear of breaking up the family, advised the husband ie had seen nothing, and on counseling with his wife, — plaintiff’s sister, — concluded not to mention the matter. He is not impeached in any way, save by this report of what he .had seen, and it is not at all certain that his course was not such as would have been pursued by many persons of prurience. Possibly but for the corroborating circumstances, his evidence ought not to be held to establish the fact. The •defendant, however, fell into several situations requiring an .account, and her explanations are not satisfactory. Besides, fhe conduct, of a married woman ought not to be such in relation to another than her husband that exculpatory statements are continually in demand. On one occasion, when unexpectedly returning to the house for the milk pails, plaintiff saw his wife leaving the room in which Burns slept,. in her nightclothes. Of course, she explains that her daughter was with her, and they were wifchd rawing, upon, the discovery that the boarder had not arisen. But this daughter ordinarily slept till breakfast, and how she came to leave her room, in that condition so soon after her husband had arisen is not satisfactorily answered. Again, about a week later, the plaintiff started to take a team to the field, leaving defendant and Burns in the dining room. He met an employe coming for it near the house, and, upon returning immediately, found them in a bedroom off the sitting room, through which they must have passed. Bums was in bed, but she came out flushed, and began dusting, according to her husband, though she denies this, and explains that she was ironing, and merely stepped to the door to talk. Two employes testify they had seen the accused parties withdraw to a bedroom several times, and close the door,, when the husband was absent, and that Burns, when working for him, would remain at the house each moaning longer than was required to do the chores. In March, 1897, the defendant underwent an operation at the hospital, and, while there, informed the nurse in attendance that Burns, who called several times, was thoughtful of her when unwell, and “always knew it as soon as she did, and took all precaution to help take care of her.” She denies this, but admits having corresponded with him in 1892, whether at the instance of her husband being in dispute. When accused by him of improper relations with Burns, she responded that it was no worse than he had done, and thereafter denied guilt, and. expressed indifference as to his suspicions. Both the defendant and Bums deny having had sexual intei'course. But urn think she has failed to- account for the incriminating circumstances, except as her somewhat impaired health may tend to do so. But, even in her condition, she was able to and did go skating at forty, and, according' to the physicians, her trouble did not interfere with sexual enjoyment.

Withholding herself entirely from her husband, under the circumstances disclosed, tends to confirm the proof of her guilt. The testimony of Burns is condemned by his own conduct and words. Had he been innocent, he would hardly have frequented the premises as disclosed. One-witness declared he had told him as early as in 1892 of sustaining improper relations with the defendant Soon after leaving, May 5, 1897, he addressed a letter to her, saying: “Say darling, I know you will think I have gone back on you; but be true to me, and I will be true to you, my love. 0, Flora, had we not to part. Well, I suppose it was the best for you, because you are not very stout. But do you know how I feel, for it is just killing me. * * * Darling, did you get your buttons yet? They were $1. By, by, love. B. B. & Q. Y. S. K. 10,000. From your sweetheart, Totise.” Seven days later, in another letter, he addressed her as “My Darling Totise,” saying he would be there Sunday, and closed with the -same letters as before, with the figures 100,000. We venture to add that Burns defines these abbreviations to mean, “Bye, bye; and consider yourself kissed 100,000 times.” But this was not. enough; for he adds, by way of postscript, “To-tisc, darling, dear, B. B. D. L.,” which is said to mean, “Bye, bye; dear love.” Though forbidden to visit the premises, he promises to come, and presents her with sleeve buttons, which she accepts. His feelings are apparent from these letters, which indicate the relation he at least supposed himself to sustain to the defendant. He accounts for the letter by confessing to have been foolish, and says she gave him no occasion to thus address her. Strange that he should so presume! A correct explanation, as we believe, is that to shield himself, and, through a false sense of honor, to screen-her, he has not testified to the truth. See Harrington v. Harrington, 107 Mass. 329. The defendant is shown tQ, have been guilty. We have gone into details in reviewing the evidence more than is our custom, as the conclusion reached is contrary to that of the district court.

. IV. The plaintiff was' awarded the custody of the son, and the defendant that of the daughter, who is now over ■sixteen years of age. It is possible that the situation is such now that this arrangement should not be interfered with, and that the plaintiff ought to contribute to the daughter’s maintenance and education; and it is possible that the division of the personal property made ought to be carried out. But no money as alimony should be paid to the defendant, _ as the property left the plaintiff will not ■exceed his indebtedness. We have concluded to- leave these matters open for readjustment by the district court. The cause will therefore be remanded, with directions to enter decree of divorce in favor of the plaintiff, and such an ■order with reference to the custody of the children and the division of the property as the present situation of the parties may demand. — Reversed.

Granger, C. J., not sitting.  