(concurring). I concur in an affirmance of the judgment, but I desire to add to the opinion already written in the case a brief statement indicating more adequately tho reasons which lead to the conclusion. A careful reading of the record fails to result in a conviction that the plaintiff' has sustained the burden of proof either upon the charge of cruelty or of habitual intemperance. The testimony in relation to the cruelty charges, particularly, is conflicting, and the tt ial judge, who had the benefit of a better opportunity to weigh the testimony of the witnesses, has found against the plaintiff. This finding should stand. It is noteworthy that two sons of the marriage, who were in the best position perhaps to corroborate the testimony of one or the other of the parents with respect to those charges, did not testify. It is true that the record shows that the plaintiff made some effort to obtain testimony from this source, but in view of the methods available for obtaining testimony we can hardly assume, upon appeal, that it was impossible for either party to obtain needed evidence where the witnesses are living, available, and competent. Perhaps the natural explanation of their failure to testify is their desire to discountenance the proceeding. The record in its present state leaves a well-grounded doubt in the mind as to whether the defendant was guilty of extreme cruelty toward the plaintiff.
Upon the charge of intemperance, it is frankly admitted by the defendant that he has fought a hard fight against the seductive wiles of strong drink, and that he has four times taken the Neeley cure with all of its attendant unpleasantness; But his business must have militated considerably against his efforts to avoid drink. At the time the parties were married the defendant was a bartender in a saloon at Towner. Later, he was county judge for a period, and thereafter and for a long period since he has been engaged in the drug business. It appears that he has not drunk sufficiently to preclude a successful management of his business, for he has accumulated considerable property. The spells which the plaintiff attributes entirely to drink the defendant attributes to other physical causes. A substantial doubt also exists with respect to this charge.
Considering the ages of the parties, their period of life, and the length of time they have lived together, along with the inconclusive character of the testimony to prove the charges upon which relief is *333sought, I am of the opinion that justice would not be subserved by reversing the judgment of the trial court and granting a divorce.
Bronson, J., concurs.