SUPREME COURT.

Hawke's Bay Tribune, Volume I, Issue 74, 9 March 1911, Page 11

SUPREME COURT.

NAPIER DIVORCE SESSION. WEDNESDAY, MARCH Bth. (Before His Honor the Chief Justice, Sir Robert Stout.) The case of Schmidt v. Schmidt, j petition for divorce, was continued ; at the Supreme Court after we went I to press yesterday. Icella C. Schmidt, aged 13. gave 1 evidence of the presence of Godlip j Schnritff in her mother’s room. When her father came home her mother told Godlip to get out. Dad met him and a row followed. Dad chucked Godlip out and threatened to chop him in two with the axe. To Mr. Currie: Witness explained the movements of the other children and said that Lily had also heard Godlip in the room and asked what he was doing there. After her mother went away she | visited her once at Matamau. She i stayed with her father and sister Elsie because she did not like Godlip. Elsie Schmidt, 18 years of age, said her father was always good to her mother when she was at home. He was also kind to the children. She was not at home when Godlip Schmidt was turned out. She had visited her mother at Matamau. The house contained three rooms and a porch—two bedrooms with a double bed in each. The occupants of the house were Godlip Schmidt. Granny, her mother and four, sisters. There was no sofa in the other room. She had known Godlip to kiss her mother and give her presents. When her mother went away she took Lily and said she would rather cut her throat than leave her. To Mr. Currie: She was on good terms with Gidlip, but took “a bit of a set on him” later on. Granny gave them clothes sometimes. She and the other girls and her mother milked and she took the milk to the factory. Her father was a contractor. At the time Godlip came to live with them her father was butchering. Her mother had “an all right time of it.” She was at service most of the time the disturbances were on. Norman Hansen, care driver at Norsewood, said he had visited frequently at Schmidt’s and had met Godhp and had become friendly with him. He had delivered messages to Mrs Schmidt for Godlip asking her to meet him. He had also seen instances of undue familiarity. Charles A. Mearo, law clerk, Ormondville. gave evidence as to serving the necessary summonses upon Mrs Schmidt and Godlip at Tanranga. This closed the case for petitioner.

Mr. Curne, for the defence, said the defence would be a simple denial of the allegations of misconduct. There was nothing inconsistent in Mrs. Schmidt’s conduct with innocence. Elene Schmidt said she had been married about 17 years when she left him. Her husband left her to do all the work. The man was jealous and she dared not look at anyone one. The household expenses were met by the milk cheque she earned. She never saw any of the money earned by her husband and he paid none of the bills. He had threatened to torture her to the grave and several times said he would shoot her. Her husband had brought Godlip Schmidt to the house—she had nothing to do with it. Godlip was to stay as long as he liked and do what he liked in the way of work. Her husband had. continued to row with her and had taken her by the throat and knocked a tooth out. She had no special row about Godlip Schmidt. Her husband had rowed about a voung man named Freeman months before Godlip appeared. He threatened to put a bullet through both Freeman and herself. She would have stayed with her mother, but her husband continually caine down and made rows and she had to get away. It was untrue that Godlip Schmidt had come into her room at night and caused a row. Godlip had left the house at 4 o’clock in the afternoon and the row occurred in the paddock earlier in the day. After leaving hei husband she always slept with her mother or her children. Godlip came to her house at Matamau on a Saturday and had his washing done. Godlip had kissed her and the rest of them as relations. Godlip Schmidt now gave her 15 - a week to look after the place while he was away working on the railway line. When seen by her husband and Mears dressing in the )>etlroom at Tauranga Godlip was changing his clothes, having got wet catching the horse. She would have taken all the children if they 1 would have come. _ Tn M. Cresswell: The children ♦were always good and truthful

when she was with them. The story of Icella was not correct. The child was truthful when with her —her husband had put the child up to it. The row took place in the afternoon and not at night as describbed by Iceila. Elsie was not correct when she said God lip was always at her house at Matamau. 4'he only reason why Hansen said things about here was to keep in with the husband so that he could get the daughter. She had to keep herself and children out of the 15/- paid her by Godlip. Carl Frederick Godlip Schmidt, co-respondent, said he had gone to Norse wood in May and lived with his nephew. At first when he came to the house it was all right, but later on he heard Schmidt and his wife quarrelling. He went back to Tasmania to sell a piece of land Schmidt lent him X 5. He returned in about a month and repaid the loan. Schmidt Engaged him to stop and assist with the hay making and grass seeding. He slept with Schmidt in his bed. After a time he heard Scijmidt had been telling yarns about him and he taxed him with it. Schmidt called him a liar and hit nim. They had a struggle. He demanded his money and Schmidt went away to get it. Witness got his portmanteau and had left that afternoon and had never gone back since.

| The Court then adjourned for :lunch.

Godlip Schmidt, continuing his evidence, deposed that when the alleged offences took place he was staying at a public house. Mrs. Schmidt did his washing, and once in a month or a couple of months he returned to Matamau for his clothes. At this time witness was a worker in a gravel pit. He had spent several nights at the house, but on nearly all these occasions had been detained by rainy weather. Hanson came to the house at the written request of Mrs. Schmidt’s eldest daughter. Witness had very little conversation with Hanson. Hanson had not seen witness in the state which he had described. He and Mrs. Schmidt went to Tauranga together. During that period he worked on the railway line, and slept in a tent. His camp was 20 to 25 miles from Tauranga. He only returned home once in a couple of months. When he did return he only stayed a night, as he had to be at work next day. On these nights witness slept on a sofa in r.ne room, and the rest of the family slept in the other room. When Mr. Mmr< came with the citation he was in the bedroom changing l is wet clothes, and Mrs. Schmidt was »n the kitchen. Mr. Mears

served him with the summons; he

rushed in like a wild beast. His age was 58. Schmidt struck him because witness said he was telling lies. He had visited Mrs. Schmidt perhaps four or five times during the time she stopped at Matamau. He merely went there to get his washing, and chopped wood and did what he was asked to do. He got someone to write a letter to Mrs. Wiltshire while he was in Ohakune. He paid Mrs. Schmidt 15 - per week to look after the place. She was to find food for herself. He paid her every week. When he did not get home he posted the money. He positively denied having been seen coming out of Mrs. Schmidt’s room. He had never asked Hansen to deliver messages to Mrs. Schmidt. The man had gone out of his way to tell things against him. To Mr. Currie: He had reen Icella at her mother’s place at Matamau once or twice. She generally came on Sunday. Lily Frances Schmidt said she was the second daughter < f the petitioner Schmidt. She, her sisters. granny, and mother slept ?n the back bedroom, and her father and Norman Hansen in rhe front room. When her Uncle Godlip was at the house he slept on the sofa. On the day of the row her uncle went away at mid-day. He was not there as described byIcella. She had lived with her

mother in Matamau, and had only seen Godlip come there a few times. When at Tauranga Uncle Godlip came home only now and then, generally on Saturday nights, and if he stopped there he slept in the kitchen. She had not much of a life at home. Her father did not treat her mother “ none too good.” Once he had threatened to choke her mother. She had known her father come home

drunk. To Mr. Cresswell: A week after she went to Matamau she went to service. She knew Godlip only came to get his clothes. She went to her mother about twice a week, but had only seen Godlip there once. He was at the Tauranga house for two or three days before they started for Napier. She remembered the row in the hayfield, and she was sure it was before dinner. She did not know how it started, but she saw them fighting. She did not see her uncle leave, but thought it was after dinner—he left before they got the cows in.

Mina E. Schmidt, aged ten, said ; she remembered going away with her mother to Matamau. Her uncle had come to them at Matamau, and had stopped one night, because it rained. He slept in the front, and J she slept with her mother and baby

in the same room with Granny and the other children. When she lived at Norsewood she slept in the same room with her mother. She had never seen her uncle come into her mother’s room. Ole Larsen said he was uncle to Mrs. Schmidt. He knew her to be a straightforward girl. She was happy enough when first married, but later he heard there were differences between them. He had gone to see them at Norsewood lots of times. Mrs. Schmidt appeared to have very little to wear, and worked very hard. He had met Godlip Schmidt at Matamau, and slept with him in the front room of the house.

To Mr. Cresswell: He only saw Godlip at Matamau once. All the women at Norsewood had to work hard.

C. F. Schmidt, recalled, said he had never threatened to shoot his wife or kill his children. He had not pushed her brother out. He never drank, and had not come home drunk on any occasion. To Mr. Currie: His wife had her tooth pulled by the dentist. Norman Hansen lived there with him all the time. He had never illtreated his wife. This concluded the evidence, and Mr. Currie proceeded to address the Court. He pointed out there was considerable conflict of evidence, and it was for the jury to

say which story they would believe. There was no corroboration of the alleged misconduct.

Mr. Cresswell, in his address, held that the evidence was not consistent with innocence, and urged the deduction from facts disclosed was undoubtedly misconduct. His Honour said that it was a case in which the jury would have to decide more upon facts than anything else. The first thing to consider was what took place on the 29th. He reviewed the evidence surrounding this point. The burden of proof remained upon the petitioner, and if there was any doubt they could not find the respondent guilty. The Matamau and Tauranga cases were merely a question of inference. There was no law ; it was merely a question of evidence, keeping in mind the fact that the petitioner had to provide proof. After a short retirement, the jury returned with a verdict that misconduct had been proved, and they awarded damages to the extent oi £5O.

His Honour then issued a iecr< e nisi with right to apply for a decree absolute in three months. Mr. Cresswell applied for interim custody of the children, but his Honour said he had better applv

later, on application for the decree absolute, when the payment of the £5O could be arranged. Costs were allowed on the li.vist scale.