JUSTICE McNEAL delivered the opinion of the court.
This is an appeal from a decree dismissing plaintiff's complaint for divorce for want of equity. In her verified complaint Barbara C. Balfour alleged that her husband, Robert L. Balfour, had been guilty of extreme and repeated cruelty toward her on July 22, August 1, and November 18, 1957. Defendant filed a verified answer in which he denied the allegations of cruelty and alleged that plaintiff had committed adultery with two men known to defendant. The two men were named at the trial before the court, and defendant's answer was amended accordingly. Plaintiff
Appellant contends that three basic questions are presented for review, viz.: (1) Did the trial court err in denying plaintiff a divorce on clear evidence of three corroborated acts of cruelty? (2) Can the recriminatory defense of adultery be proven by "defendant's uncorroborated testimony to uncorroborated confessions of uncorroborated adultery by the plaintiff?" and (3) Did the trial court err in considering the claim of privilege by two defense witnesses as evidence against the plaintiff?
The parties were married on April 10, 1942, and as a result of the marriage two children were born — a daughter aged fourteen years and a son ten years of age. Plaintiff testified that on July 22, 1957, about 9:00 or 9:30 in the evening, the parties were at their home in Wheaton. She decided to drive over to her sister's home in Joliet. She took the car keys and told defendant she was going over there. He followed her out to the driveway and said she could not go. She replied that she would go if she wanted to. He twisted her arm and hit her, bruising her arm and blackening her left eye. Her father, Clarence Curtis, arrived on the scene. He testified that plaintiff and defendant were struggling, he separated them, and took his daughter to her sister's home in Joliet. Defendant testified that during the evening of July 22 he had conferred for an hour and a half with his wife's parents in the office of Dr. C.B. Wyngarden, and there stated that his wife had been keeping company with Dr. O'Hair, a dentist. He returned home about 9:00 o'clock and told his wife that he had just finished the conference with her parents and had told them the facts as she had given them to him. His wife became hysterical and said that she hated him for telling her parents. She ran into the bedroom,
On August 1, 1957, plaintiff and defendant, their children, and her parents attended a Pony League game where their daughter was a candidate for Pony League Queen. Plaintiff testified that while they were in the stands defendant commenced to argue with her. She and her parents got up and walked to the place where the cars were parked. She got in her father's car. Defendant said that she could not go with her father, but had to ride with defendant. He twisted her arm and pulled her half way out of the car. Her father tried to stop defendant, her mother stepped between plaintiff and defendant, and he pushed her mother against the car and hurt her back. Plaintiff locked the door on the car and her father took her to his home. Plaintiff's mother, Viola Curtis, testified that when defendant was pulling her daughter out of the car, Mr. Curtis attempted to restrain defendant. Mrs. Curtis ran between Mr. Curtis and defendant, and he shoved her, causing her hip to hurt. Curtis drove his car away with his daughter as a passenger, but left Mrs. Curtis standing there. She admits that she knocked defendant's glasses off with her pocket book. Defendant's version of this event is that he was called out behind the stands by Mr. Curtis, who told him that he was not going to stand for defendant's treatment of the plaintiff. They returned to the stands
During the evening of November 17, 1957, there were repeated telephone conversations between defendant's daughter and some giggling youngsters at the other end of the line. About ten or eleven p.m., the phone rang again and the daughter answered. Defendant grabbed the phone and said "Will you get off the damn phone." Plaintiff protested that defendant should not swear into the phone to his daughter's friends, and an argument ensued. He told her that he was the ruler of the house — like a captain rules his ship, and that she should not interfere. The argument continued until about 12:30 a.m. on November 18, when he said: "Damn you, shut up," and threw her against the wall, hurting her right shoulder. Plaintiff's father and mother testified that their daughter told them on November 18 that defendant had pushed her against the wall. Her mother said that plaintiff displayed a bruise on her shoulder. Defendant says that when he grabbed the phone and spoke into it,
On the morning of November 18 plaintiff was in bed when defendant took his daughter to the school bus. When he returned from work that day his mother-in-law, Mrs. Curtis, was preparing dinner. She said that plaintiff was not feeling well and would spend the night at her parents' home. Defendant telephoned his wife to inquire whether she wanted a doctor or medicine. On November 19 defendant returned from his work about 6:30 p.m. and found that Mr. and Mrs. Curtis were dinner guests. About 8 o'clock the complaint for divorce and restraining order were served. When defendant asked his wife how she could make such false claims against him, she referred him to her lawyer.
In announcing his decision the trial judge reviewed the evidence pertaining to the alleged acts of cruelty and then stated: "Now, if this had been an uncontested divorce case, the plaintiff would have made out at this point a prima facie case for divorce." From this statement appellant contends that the court must have denied plaintiff relief on the basis of defendant's evidence relative to plaintiff's alleged adultery. According to the abstract, the judge also said: "There are, however, a number of variations in the testimony. The defendant denies some things and explains some of the actions, especially the two acts of cruelty in July and November.... Then we get down to
After a careful examination of the record we are not convinced that the evidence respecting cruelty is either clear or corroborated, as suggested by appellant. Although plaintiff's father was present at the struggle in July and separated the participants, it is significant that he made no reference in his testimony to indicate that defendant hit the plaintiff and blackened her eye. The episode at the Pony League game, considering that defendant was outnumbered three to one and that three of the participants were shortly engaged in a very friendly discussion, as well as defendant's effort in November to reestablish himself as the captain of the Balfour household, fall far short of showing acts endangering plaintiff's life or limb.
In view of our conclusion that the trial court properly dismissed plaintiff's complaint for want of equity, the other two questions submitted by appellant need not be decided. For the reasons indicated the decree of the Circuit Court of Du Page County is affirmed.
SPIVEY, P.J. and DOVE, J., concur.