I dissent. In commenting upon the two findings upon which the judgment of the court below must rest for support, it is said in the majority opinion: "It may be conceded for the purpose of this appeal that the evidence was such that it would have supported contrary findings, or even that the judges of this court, upon a review of the evidence contained in the record, might come to a different conclusion as to the facts from that reached by the trial court. . . . Looking at the evidence, it cannot be said that there is not evidence sufficient to support these findings." Herein I am obliged to differ with the majority of the court. So far from there being sufficient evidence to support the findings, there seems, from the transcript, to be an entire lack of testimony to support the material and essential facts contained in them. The first of these findings is as follows: "That, in the year 1877, plaintiff voluntarily separated himself from the defendant, and thereafter, until on or about the *Page 120 tenth day of April, 1897, continued to live separate and apart from the defendant, but that the said separation was not against the wish or will of said defendant, but was wholly acquiesced in and consented to by the said defendant. That plaintiff did not in the year 1877 willfully desert and abandon the defendant, nor was plaintiff's separation from the said defendant with the intent then and there to desert the defendant, nor has the plaintiff ever since, or at any time, continued to or kept up or continued the said or any separation or abandonment; but that, on the contrary, the separation of plaintiff from defendant in the year 1877 was, and thereafter until the tenth day of April, 1895, continued to be with the full acquiescence and consent of defendant." The material and essential questions involved in this finding are whether the husband in 1877 voluntarily separated himself from the defendant, she acquiescing in the same, or whether he deserted her against her wish and will. The only direct testimony bearing upon these questions is that given by the parties themselves. In the testimony of the wife she says: "In the morning when we were down to breakfast and sat there and he started to go, he went back first into the kitchen and discharged the cook in my presence and I told the cook not the pay any attention, that he must remain. He told the nurse to pack his trunk, that he would send for it that day, and then he left and during the day he sent for the trunk by an expressman, and when I saw that he was there I interrogated him to find out where he was going to take the trunk, and the expressman did not tell. That was the last time that he was ever in the house. The trunk was ready to go. The nurse had packed it. It was not closed, and just before it was closed I put in a little shoe, one of the pair of shoes, a little kid shoe, the first my baby had ever worn, and laid it on the tray of the trunk after the things were all packed, that was one of my baby's shoes, and I had a pair of cuff-buttons that I had given him Christmas before we were married and rather too handsome for him to wear daily and liable to be broken, and he asked me to put them aside, and take care of them for him. I put those on top of the tray of the trunk and I wrote a few words on a piece of paper and put them on top of the cuff-buttons. I have not seen the piece of paper since. *Page 121 I remember about what the words were. I said `I married you for love, I have lived with you for love and I would have clung to you forever for love. You have broken my heart. You have wrecked my life. May those who have done this thing meet with just punishment. God help us all and keep you from harm. Your wife.' I directed it `My husband.' I laid it on top of the buttons that he must see it. It was impossible for it to get lost. I know he must have seen it. I put it in the tray of the trunk beside the little shoe. The trunk was locked by the nurse and the expressman took it away. I have never at any time had any agreement or correspondence or talk with Mr. McMullin or any one in his behalf, since then, to live separate." Plaintiff's attorney here admitted that Mrs. McMullin was a woman of education and refinement. She further testified: "I lived with my father up to the time of his death, about fifteen years ago, and since then with my mother, and they have supported me and my child, barring the time that I was working for my living. I worked in the mint for over eight years, and devoted my salary to the support of my boy and myself." That portion of the testimony of the husband in relation to the separation is as follows: "Q. [By his counsel.] Did you say to your wife on the 14th of November, 1877, `I am going to desert you; my relatives are unwilling I should live with you; I wish you would pack my trunk?' — A. I do not remember anything about the relative part. I remember asking to have — I do remember asking her to pack my trunk. — Q. Did you on the morning of November 15, 1877, before leaving the house, discharge, or attempt to discharge, the Chinese servant? — A. I do not remember anything about the occasion of discharging either the servant or nurse. I have no recollection of any such occurrence. I don't remember speaking to the servant about it. I sent for my trunk by an expressman and got it. I have no recollection of seeing that little shoe in the trunk, and I am sure I would remember it if I had seen it, and I think I would have it now." On cross-examination he said: "I don't remember that shoe. I think if I had received it I would have it yet, but I can't recall it. I remember the pair of cameo cuff-buttons. She gave them to me for a birthday or Christmas present before marriage. I guess they came in the trunk, but I can't *Page 122 remember about that. At any rate, I think they are somewhere among my effects now, but I have not seen them for years. She put them in my trunk and I took them out. I don't remember whether they were in the case when they came in the trunk. . . . I don't remember about any note being put in the mirror or otherwise. I don't remember whether I sent any communication to her in any manner. After one, two, or three days I went back for the purpose of getting my things, or having them packed to leave. There might have been a request made for these things to be packed while I was away, but I don't know. When I went back for my things she begged me to stay." Here we have the statements of the parties concerned in reference to the manner in which the separation took place. There is nothing in the transcript to the contrary, or showing a different state of facts. It is a fair presumption that the wife's statement of the matter is correct, for the reason that the portions he does not admit he simply says he does not remember, without denying the same. For instance, in her statement she says: "I wrote a few words on a piece of paper and put them on top of the cuff-buttons." He admits having received the cuff-buttons, but "don't remember about any note being put in the mirror or otherwise." Her note shows the opposite of any separation on his part with her consent. On the other hand, she says that "You have broken my heart; you have wrecked my life," etc. He admits in his testimony that "When I went back for my things she begged me to stay," and he does not deny that he told her: "I am going to desert you, my relatives are unwilling I should live with you," but only says, "I don't remember anything about the relative part."
The other finding in question is as follows: "That on the tenth day of April, 1895, while the plaintiff and defendant were living separate and apart by mutual acquiescence, the plaintiff offered, in good faith, to return to and live with the defendant and sought a reconciliation and restoration; that the defendant then and there refused it, and ever since has refused to accept said offer." The vital point in this finding is, that the husband offered in good faith to return to and live with his wife. The offer in question, it will be *Page 123 seen, was made some eighteen years after the separation, and was not made until every effort had been exhausted on the part of the husband to induce the wife herself to bring a suit for divorce. Instead of having been made in good faith, for the purpose of reconciliation, and with the expectation that the two would live together, it was made for the purpose on his part of laying the foundation for this action. At the time the offer in question was made, an action for maintenance against the husband had been instituted by the wife and was then pending. The late Judge Paterson was the attorney of Mrs. McMullin in that proceeding, and the husband's attorney was Mr. Wheeler, who is also his attorney in the present action. Judge Paterson was called as a witness on the trial of this case and says: "During the pendency of that case [the suit for maintenance] I had a good many talks with Mr. Wheeler and Mrs. McMullin. . . . I know that McMullin was exceedingly anxious to have the matter disposed of and that there should be a divorce. Mr. Wheeler told me that Mr. McMullin would be anxious to give her a liberal half of all the property he had, and would acquaint us fully with those properties, where they were and what they were worth. Mrs. McMullin, basing her objections on religious grounds, declined to listen to any proposition which would result in a divorce. She claimed to have religious scruples against such a thing as divorce, and said she never could have a happy day if she were a divorced woman. Necessarily, and taking these views, and being very positive about them, the matter of divorce was dropped, so far as she was concerned, in the negotiations." On cross-examination he says: "I intended to say that Mr. McMullin's desire, communicated to me, was that there should be a divorce from his wife, to which she would not assent. Subsequently I stated that I learned from either Mr. McMullin or Mr. Wheeler — I don't know which or where — that unless that were done Mr. McMullin would lay the foundation of a divorce himself by an offer of a home." The testimony is not in any manner impeached, and it shows that the husband sought to have the wife bring a suit for divorce. He, of course, knew that she could not bring the suit unless he himself had been guilty of desertion and that she was the injured party. Still the court finds that he did *Page 124 not desert — that the separation was agreeable to the wife and by consent. It further shows that the offer in question was not made in good faith for the purpose of reconciliation and restoration of the relation of husband and wife, as the code requires, but was made to lay the foundation for a divorce.
The so-called offer, as an effort at reconcillation between husband and wife, is, to say the least, rather unusual. He does not visit her to talk the matter over, as might be supposed in such a case, but sends her a formal note to call on him at a certain hotel, where he will await her coming for half an hour. After referring to the negotiations testified to by Judge Paterson, in which it already appears she refused to bring an action against him, the note in question concludes by saying: "I therefore ask that you return and fulfill the marriage contract, and I offer to do and will do likewise. I will wait for you to-night at the parlors of the Occidental Hotel from 7 P.M. until 7:30 P.M." On cross-examination he was asked: "When you sent this letter to Mrs. McMullin did you expect that she would accede to it? — A. I didn't know. — Q. I asked you if you expected? — A. I think I answered I did n't know. — Q. Of course you did n't know whether she would accept or not — did you expect she would? — A. I did n't know at that time. — Q. You did n't know whether you expected it? — A. I did n't know whether she would accept it or not. — Q. Then I understand you did n't know whether she would accept that or not. Did you expect she would accept it? — A. How could I tell that?" The court then interposes: "Did you have any expectation about it one way or another? — A. Yes, naturally so, judge; I would rather expect she would accept it. — Q. [By defendant's counsel.] What reason did you have for expecting, after these eighteen years of separation, under all these conditions, that she would accede to this letter and go and live with you again?" An objection was made to this question, which was sustained by the court, and the witness was thereby saved from being compelled to answer it. From the tone of his letter to her, as well as from the other circumstances shown by the evidence, his offer was not made in the expectation that it would be accepted, nor for the purpose of reconciliation, but, on the contrary, was made for the sole purpose of laying *Page 125 the foundation for this action, and in accordance with what was stated to Judge Paterson he would do, in case the wife refused to bring the action herself; and the purpose of the question on cross-examination was to ascertain whether that were not the fact, and to show that he had no reason or ground for supposing that under the circumstances a reconciliation would take place. The crucial point in this particular was whether his offer was made in good faith, and the defendant's counsel had a right on cross-examination to test the conscience of the plaintiff — the husband — upon the question of his motive or good faith in making the offer. Cross-examination is one of the most valuable means of eliciting truth, and when properly conducted should be upheld by the courts and not suppressed.
The judgment and order should be reversed.