(dissenting). This is an action for the dissolution of a matrimonial partnership and a division of the partnership property. The district court decreed a dissolution on the ground of cruelty, awarding the plaintiff about $50,000, or one third of the property. The suit was commenced two and one-half years ago, and it has been pending in this court for ten months. In the early summer it was argued at great length, and afterwards, in about three months the arguments were repeated. The argument was only in regard to the property. Now a decision is given reversing the trial court, and holding that on the question of cruelty honors are easy; that the cruelty on one side fairly offsets the cruelty on the other. Hence, the court denies a dissolution of the partnership and a division of the property. It requires John to dole out to Katherine an occasional pittance so she may eat from his hand and partake of the crumbs which fall from his table. The long and specious arguments were well calculated to deceive and mislead the court. It was strenuously contended that Katherine had not been so good and so chaste as John, and that, therefore, she should receive only a small annuity.
The appeal presents no question only on the division of the property. However, in their zeal for supposed righteousness and their bent for old laws and customs, our judges think it well to punish both parties by putting them on probation, keeping them another three years in a state of wedded celibacy, and forcing them to waste a good part of their wealth in another vexatious suit. That is all dead wrong.
Some two decades ago, in the springtime of life, the parties met and entered upon a matrimonial partnership. They had no fear of commencing life with nothing so they grew up with the magic city. By industry, frugality, and good luck they soon commenced to accumulate a fortune. She ate not the bread of idleness. Were it not for her thrift and industry, the chances are there would be no occasion to quarrel over property. By watchful care, industry, and working early and late cooking for 150 to 200 guests at a time, she turned her hotel into *650an. Alladin’s lamp and made wealth for her John to squander. While he made expensive tours over the country, sojourning at Dreamland in Spokane and for several moons with the fair nymphs of Paris and Hong Kong, she kept her hotel and made the wealth; and yet his homecoming messages gave no assurance of devotion, no token that absence makes the heart grow fonder.
However, as Katherine made the wealth, she very unwisely kept the bank account and all the property in the name of her assumed lord and master. In that way she suffered herself to be put in the position of a dependent, and not an equal partner. Had she from the start insisted on courteous treatment and on keeping her share of the property and money in her own name, or on an immediate dissolution of the partnership, then the outcome would have been very different. Then, there would have been no threats to turn her onto the streets without a penny, and no necessity of a suit for a division of the property.
Concerning the cruelty, it is in no way possible to fairly represent it. It is hard to conceive of a course of more continuous, persistent, and heartless cruelty than that inflicted on the plaintiff. Her testimony is circumstantial and credible, and it is in the main, well corroborated by several witnesses. It shows that during some ten years on all occasions she was grossly insulted and falsely charged with crime, and beaten and pounded black and blue. She was baited and insulted so as to provoke her to resent it by assaulting the defendant that he might the further pound her. She was treated to a continuous and daily course of nagging and baiting. In 1908, on her return from the hospital after a serious operation, he came home intoxicated, got on her stomach with his knees, pulled her hair, kicked her out of the bed, and mauled her around. She says: “He kept it up for an hour and got so vicious that the daughter, Angeline, called in the' night clerk. I was laid up for a good long time after that.” In September, 1914, he returned from a trip to the west, and commencing baiting her about her dress, calling her a whore and a chippy until she slapped his face, — and then he beat her black and blue, — struck her head against the wall. Her aged mother was with them, and the result of such treatment was to seriously injure her health, make her a nervous wreck, and cause her a continuous headache. The plaintiff testifies: “He called me whore and bitch every few days, and, by the time my bruises were healed, I *651got new ones on top.” Then it seems he was always loving and doving the chambermaids, calling them pet names, visiting them in their rooms. She was driven to commence a prior divorce suit. They made up and agreed to forgive and forget, and he at once commenced the same old thing, and worse. He got more violent and more aggravating. It was a constant uproar all the time. When she went to early mass and confession with her daughter, Angeline, John did not think her penance sufficient and so he had to give her a good beating. The daughter, Angeline, testifies: He continued pounding her mama while she was begging him to stop. Angeline testifies that, when she was a child, he beat her fully three times a day. She feared him and ran away, and he ran after her and beat her on the way home. His home was as the Deserted Village:
“No children run to lisp their sire’s return,
And climb his knees the envied kiss to share.”
Of course the plaintiff was a woman of some spirit, and not a dog to lick the hand that beat her; and so it may be that at times she attempted to take her own part and to give blow for blow and abuse for abuse, and that she did not tamely submit to her treatment. That was all very proper and right. But she was by far the weaker of the two, and it is sheer folly to say that she was the aggressor and that she was guilty of love’s treason. When the lion and the lamb lie down together, and the latter gets up covered with marks of violence, we must not think that the lamb was the aggressor. Defendant denies the testimony of the plaintiff and all her witnesses. He said they all lied. But his testimony is wholly incredible; it is not true.
He was insanely jealous, and it seems he thought by beating, nagging, and baiting his spouse to drive her to desertion or to submission and affection. To throw off her loneliness and her burden of care and sorrow, she consorted with one or more vivacious lady friends, and played the part of the Merry Wives of Windsor. This the court terms an indiscretion, and doubtless it looked awful bad to John. Like the master Ford of Shakespeare: “He could little understand his wife’s love of her lively neighbors’ company or the feminine necessity for a change of scene and lively diversion.” So he did not make amends by going on his knees and saying to her: “Pardon me, wife. Henceforth *652do what thou wilt. I rather will suspect the sun with cold than thee with wantonness.”
The trial of this case and the conduct of the appeal is itself a sufficient cause for a divorce. It shows no spirit of gallantry or fairness. It is in keeping with the charge of cruelty made in the complaint. For two weeks the ordeal of the trial was protracted while resort was had to every device to humiliate the plaintiff and besmirch her womanhood. She was openly and persistently and shamefully and falsely charged with crime. She was continuously harassed and insulted by counsel concerning alleged crimes and other vexatious matters. She was treated without respect due to a wife and mother. In all fairness and honor the plaintiff is entitled to an equal share of the property. The trial court awarded her only one third of it, and yet the defendant appeals to this court, and hires lawyers and ex-judges to come here to slander the plaintiff. Her own property held in trust in the name of the defendant is used to hire lawyers to traduce her.
The judgment should be affirmed.