48 La. Ann. 1194 | La. | 1896
The present action is an action for separation from bed and board, instituted in August, 1894, by a husband against his wife, upon an allegation that his living with her is altogether insupportable and impossible. This condition of things is averred to have been brought about by her jealous disposition, which caused her to make his home unbearable, by her repeated, unfounded, irritating and vexatious reproaches against him, and by her constant quarrels and abuse. He averred that six or seven years prior to the institution of the present suit, matters reached such a point as to force him to leave the conjugal domicile, to which, however, he returned on a promise by his wife that she would cease quarreling
During the trial defendant offered to introduce a number of letters from her husband to herself at various dates betwhen May, 1893, and July, 1894, “ to show that he received his wife at that time and took her into his room — to show reconciliation ” — but on plaintiff’s objecting that defendant had averred that there was no reconciliation at that time, and that they were statements of the husband, and, therefore, inadmissible under Art. 2281 of the Civil Code, as amended, they were excluded. We find them, however, in the record, annexed to a bill of exception taken by the defendant to the ruling of the court in regard to the same.
One Adele Armant, the owner or lessee of the house at which plaintiff was residing during the period covered by these letters was permitted over plaintiff’s objections to testify to the fact that during that period defendant had visited plaintiff at his rooms and was there with him several hours on different occasions. The court permitted this fact to be shown, not to prove a reconciliation, but as tending to show the nature of the quarrels between the parties and how serious they were.
The District Court rendered judgment in favor of the plaintiff, decreeing a judgment of separation of bed and board between himself and his wife and rejecting the wife’s reeonventional demand. From that judgment defendant appealed.
The opinion of the court was delivered by
We are of the opinion that in so far as plaintiff seeks to have a separation upon the ground that his wife had “ publicly defamed” him it must fail for several reasons. In the first place whatever statements were made by the defendant in respect to the relations which she asserted existed between her husband and her supposed rival were not in our opinion either wantonly or maliciously made, nor made with the intention of injuring her husband.
In Bienvenu vs. Buisson, 14 An. 386, in which a wife claimed a separation from her husband, we said that it was impossible to give a defamatory intention and effect to epithets applied by a husband to his wife when no one was present but the spouses themselves, although such epithets would have had much gravity had they been uttered in the presence of a third person. Plaintiff has called our attention to the latter part of this sentence and deduces from it broader consequences than the expression justifies. Unquestionably a charge of adultery made by a husband against his wife in presence of a third person would present a question of a much graver character than the same charge would have had had it been shown to have been made by the husband to the wife in their bedchamber» but it by no means follows that such difference would consist in leading, up to a right to a separation even by a wife independently of the time, place and circumstances under which the charge was made and independently of the relations toward the parties of the person who might be present on such an occasion and the circumstances under which he was present.
In Cass vs. Cass, 34 An. 614, in which a wife assigned as a ground of complaint against her husband that he had defamed her, the court said that the argument advanced by the husband, that to constitute'
We are not inclined to designate as a “ public defamation” the utterances of a wife to a confidential friend while seeking sympathy or advice and when smarting under what she reasonably considered to be wrongs received at the hands of her husband, by neglect of herself, and indiscreet, injudicious and excessive, even if not criminal, attentions to some other woman.
In many such cases the supposed wrongs may have been exaggerated, in others purely imaginary, but we scarcely think that the wife in so acting could be charged in any of them with having “ publicly defamed ” her husband. In the case at bar we think much of the unhappiness between the parties could have been and should have been avoided by the husband by a cessation of the visits and attentions of which his wife complained — if not entirely, at least to within limits which would have restored harmony in the family. There is such a thing as avoidable unhappiness, and we think that where husband or wife appear before the court without having attempted to remove exasperating or irritating causes of dissension which were directly within their power of control, they can scarcely expect that we should relieve them from a situation from which they could easily extricate themselves. An examination'of the testimony in this case leads to the opinion that much of plaintiff’s unhappiness consists in doing what any married man might reasonably expect his wife would do under similar circumstances, and in not only
The acts of the plaintiff in writing to his wife and receiving her at his rooms, when living at Adele Armant’s house, are irreconcilable with the conduct of a man under a sense of wrong at having been publicly defamed. The expressions o'f the letters, their whole tenor, is opposed to his attaching any weight or importance to those conversations. The real grounds of complaint are plaintiffs unhappiness produced by continuing quarrels between the spouses, resulting from the jealousy of the wife, and to differences between them in regard to the latter’s children by a first marriage. This latter ground is not assigned in plaintiff’s petition, but is made very prominent in the letters we have referred to. Plaintiff succeeded in having these letters excluded. The conclusions we have reached in the case independently of them make allusions to them unnecessary; but we think they were admissible in connection with Adele Armant’s testimony, to show that plaintiff invited his wife to his rooms long after his alleged defamation by her, and that she visited him there at his solicitation, and through that fact to show (what the testimony of Adele Armant was allowed to be introduced to show) that the grievances of these parties were not of the grave and serious character which they would be taken to be if tested simply by the allegations of the parties. The plaintiff was not through these letters made to be either a witness for himself or against his wife; the letters were not go be used for his wife as containing statements therein in support of a demand made by her against him, but as matters emanating from
- In dealing with this matter of the public defamation of the plaintiff by the defendant we have in reality disposed of the whole case, for we have already expressed the opinion that plaintiff’s conduct was of a character such as naturally to arouse the jealousy of his wife, and that he was (to an extent sufficient to cause him to fail in this action) to blame for the resulting quarrels and his own resulting unhappiness. Plaintiff contends that the wife is not authorized in this suit to claim in reconvention a separation from bed and board based upon abandonment.
The syllabus in Bienvenu vs. Buisson, 14 An. 386, is to the effect that- “ a reconventional demand on the part of defandant for a separation on the ground of abandonment is not admissible. A particular form of procedure is required by the Code for obtaining a decree of separation on that ground, and to that form the defendant must have recourse for relief.” The same matter is referred to in Jolly vs. Weber, 36 An. 678, in which the husband reconvened, praying for a separation of board on the ground of abandonment by the wife and caused, during the pendency of the suit brought by her for a separation, summons to be served upon her to return to the matrimonial domicile. Referring to defendant’s reconventional demand, the court said: “We are at a loss to appreciate the relief which defendant could possibly claim under his wife’s refusal to obey the summons, in the face of the showing that her continued absence was justified in law by the order of the court allowing her another and a
We find a decision in France to the same effect: “ Le grief resultant de ce que le mari refuse de recevoir sa femme au domicil conjugal ne serait pas recevable s’il se fondait uniquement sur ce que le mari n’aurait pas tenu compte d’une sommation a lui faite avant la signification de l’arret, qui avait rejeté une demande en separation de corps anterieurement formeé par lui.” Trib. Seine, 27 Mai, 1868, D. P. 72-1, 87-8.
In the Bienvenu case defendant was evidently seeking to obtain-a separation from bed and board on the ground of abandonment of the wife by direct proof of the abandonment administered on the trial, without having had recourse to the various summons and orders to return prescribed by the Code.
The abandonment of this case is that of the husband, and it is alleged to have antedated the bringing of plaintiff’s suit by several years. The various summons to the husband to return were made during the pendency of the present suit, in support of the reconventional demand. Our decision in this ease being a rejection of plaintiff’s demand, carrying with it a conclusion that he was not warranted in withdrawing from the matrimonial domicile, it may be claimed that we could and should now give effect to the summons made during the suit, or reject the plaintiff’s demand and leave the reeonventional demand standing for future summons. We have no right to say that plaintiff would not be willing, upon the rendition of this judgment, to become reconciled to his wife and return to her. It would be against the policy of the law that he should find himself confronted by a judgment of separation from bed and board in favor of his wife on account of abandonment, based upon neglect or refusal to return upon summons made when the propriety of his own course and the conduct of his wife was at the very time being made the subject of judicial investigation. We do uot think he should be placed, finally, in default pending the litigation, but that the summons
For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be and the same is hereby annulled, avoided and reversed, and it is now ordered, adjudged and decreed that plaintiff’s demand be rejected. It is further ordered, adjudged and decreed that the demand in reeonvention of the defendant be dismissed as of non-suit.