Petition for rehearing denied October 20, 1931 ON PETITION FOR REHEARING (3 P.2d 1113) The defendant has filed a petition for a rehearing. For a statement of the issues made, see our original opinion.
One of the chief objections made is that we failed to consider the efforts of the defendant to effect a reconciliation with his wife. We fully considered the matter presented in that regard, and from such consideration we reached the same conclusion as did the trial court; i.e., that a good-faith effort was not made by defendant to become reconciled with his wife. The record indicates that he did call upon his wife on one occasion and that, in a sneering tone, he asked her to make up. There is no testimony in the record tending to show that the messages concerning a reconciliation were messages from the defendant made in good faith for the purpose of persuading his wife to live with him again. We regret to annul a marriage contract when it is probable that the parties thereto could live together in peace and harmony. We held in Hawley v. Hawley, 101 Or. 649 (199 P. 589), that divorce is prima facie prejudicial to the public interest, and that it is the policy of the state not to destroy, but to preserve, the status of marriage. But the statute prescribes a specific ground for divorce, and, when proof in support of such ground comes before us it is our duty to grant a divorce. We believe that these parties litigant can no more make up their differences and live happily together than can a camel pass through a needle's eye.
The opinion is likewise criticised because the testimony of Elizabeth Billion was confused with that of her mother, the plaintiff herein. Elizabeth testified at *Page 637 length as to the hardships of their home life. Concerning the fuel, she testified that "we borrowed fuel from the neighbors and took down old fences and under the front porch got some planks, boards, and my aunt got some fuel for us," and she testified that they were frequently without food. She testified that she went out and did housework to help support the family, while her mother sewed.
The record presents a pitiful tale of the struggle of the family of the defendant for food, clothing and shelter in the freezing winter weather. It tells the story of the acquisition of old clothing from other persons, and of the mother's toil in an endeavor to make clothing for her children therefrom in order to keep them warm. In addition, it tells the story of her sewing for hire, though ill, until her eyesight failed. This, while the husband and father was in the state of Nevada in quest of a divorce.
We think the litigation in this case should end. From a perusal of the testimony of record, we are satisfied that our former decision was right and just. The petition for a rehearing will be denied.
BELT and CAMPBELL, JJ., concur.
BEAN, C.J., absent. *Page 638