Concurring. — In concurring in the order denying a rehearing in this case, I desire to make some special reference to the case of Andrino v. Yates, 12 Ida. 618, 87 Pac. 787, on which case petitioner appears to have placed his reliance for an affirmance of the judgment in the present ease. Being not only familiar with the opinion in that case, but with the record made on which the opinion was written, I desire to call special attention to the salient features of that ease which are radically different from the facts in the case at bar. In that ease the mother, who had deserted two husbands, and was living with the third, and who had been somewhat of a rambler herself, abandoned her infant daughter at the age of about eight months, and did not thereafter see her or demand or undertake to resume *457her custody for nearly twelve years; neither did she contribute anything more than a few pittances toward the maintenance, care or comfort of the child. "When she first left the child she made some temporary provision for its care but very soon neglected that entirely, and the child was thereafter left to the care of strangers and such care as the father could give it for the couple years he lived. Thereafter the child was in the care and custody of its aunt, Mrs. Tates, who was finally appointed its guardian by the probate court. Subsequent to the appointment of Mrs. Tates as guardian of the child, the mother, Mrs. Andrino, applied to this court for a writ of habeas corpus. This court examined both the mother and child in open court and heard other witnesses. It there appeared clearly and satisfactorily to the court, as stated in that opinion, that “her original legal right as mother was abandoned, forfeited or surrendered” by her continuous conduct running through a period of nearly a dozen years, and that she could not at that late date be heard to reassert her maternal right as the natural guardian of the child “to the manifest injury of the child”; that “her strict legal custody has ceased to be a rightful custody, and she is equitably estopped from asserting it as a legal right.”
In that case the principle of both abandonment and estoppel were invoked against the mother. Her alleged unfitness on other grounds and for other reasons were considered merely as incidental and cumulative reasons for not restoring to her the custody of a child then a dozen years old that she had for more than eleven years abandoned to the mercies, charity and good offices of strangers and relatives. , Her actual unfitness for its custody at the time was not the real reason for denying her its custody. Upon consideration of these questions, and of the decisive points upon which the Andrino case turned, it must at once be apparent that the case at bar differs essentially and materially from that case. Here the father never abandoned the children. The fact that he left his wife for a time in no sense constituted an abandonment of his minor children. They were in the eus*458tody of their mother, who appears to have taken the best of care of them. He had no quarrel with the mother, but his quarrel was with the mother in law and father in law. During all this time he was contributing abundantly, and in fact all of his earnings, for the care and maintenance of the mother and children. As soon as the mother died, he at once asserted his natural and legal right to the care and custody of his minor children. '
Passing briefly to the grounds of incompeteney urged in this case, I will say that no case has ever been called to my attention where a parent was denied the custody of his or her minor children on the grounds of dishonesty in business dealings, or of untruthfulness or failure to pay debts and legal obligations. If that were a legal ground for taking a man’s child away from him, it would certainly play havoc with the homes of some very prominent men in the business, commercial and social world, if we can rightly judge from the records that are daily brought before us in civil actions. I have no doubt, on the other hand, but that drunkenness is a ground for depriving a father of the custody of his children. The question of the degree and extent of the habit must determine in every case the fitness or unfitness of the parent to continue the. care and custody of his children. What to my mind might seem to disqualify one from continuing the care and custody of his children, might not be considered sufficient by someone else. But it is clear to' me that whenever a man becomes so addicted to the use of intoxicating drink that he can be classed as an inebriate or habitual drunkard, or as dangerous to the physical or moral welfare of his children by reason of his violent character or of his immoral habits and practices, he is no longer fit to have the custody of children. In this case, however, the evidence does not show that the father is a drunkard, or that he is addicted to the use of intoxicating drink at the present time, or ever has been, except occasionally. It is true a doctor testified that he had seen him when he was drinking and that Crocheron became “hilarious.” Now, if this word “hilarious” does not have a bar-room meaning that differs *459from its ordinary English meaning as defined in the lexicons, it does not imply that he was in a drunken condition. It should also he remembered that in this kind of' case the question is not a man’s reputation but his actual conduct that must be the test.