Bailey v. Bailey, 97 Mass. 373

Bailey v. Bailey

97 Mass. 373 | Mass. | 1867

Chapman, J.

By St. 1785, c. 69, § 3, extreme cruelty was the only cause for which a divorce from bed and board could be granted. In Hill v. Hill, 2 Mass. 150, the court held that abusive and threatening language did not amount to extreme cruelty. In Warren v. Warren, 3 Mass. 321, Parsons, C. J., said extreme cruelty meant personal violence, and an*378swered to the scevitia of the civil law. And in that case it was held that desertion by the husband for a period of eight years, in consequence of which the wife and children had suffered many great privations, and become much distressed, was not extreme cruelty. In French v. French, 4 Mass. 587, it was held that a single instance of personal violence, without provocation, did constitute extreme cruelty.

The restricted definition which the court had then given to the term “extreme cruelty,” left the law in an unsatisfactory condition; and by St. 1810, c. 119, two new causes of divorce from bed and board were added, namely: utter desertion; and grossly, or wantonly and cruelly neglecting to provide for the wife by the husband, be being of sufficient ability to do so. Other causes have since been added, and our present statutes authorize such divorces for five distinct causes : 1. extreme cruelty ; 2. utter desertion; 3. gross and confirmed habits of intoxication contracted after marriage; 4. cruel and abusive treatment; 5. on the libel of the wife, when the husband, being of sufficient ability, grossly, or wantonly and cruelly refuses or neglects to provide suitable maintenance for her.

The libel in this case alleges the first and fifth causes only; but the case was tiled as if the fourth cause had also been alleged ; and no question is now raised upon the pleadings. We have no occasion to consider the question whether, upon an allegation of “ extreme cruelty,” the libellant would have a right to offer evidence of “ cruel and abusive treatment,” if objection were made thereto. The principal question in the present case is whether the jury were correctly instructed as to what constitutes cruelty. The cruelty which the libellant attempted to prove consisted of personal violence, and neglect and refusal to provide for her support. The jury were instructed that no acts or treatment or conduct would be cruel, within the meaning of the statute, which did not cause an injury either to the libellant’s life, limb or health, or create a danger of an injury to her life, limb or health, or, at least, create a reasonable apprehension in the libellant of injury to her life, limb or health, upon a continuance of their living together. The term “injury to limb” ia *379treated in the books as equivalent to the phrase “bodily injury,” and is to be so regarded. This construction of the term cruel is very broad, and includes more than personal violence. Undoubtedly the legislature intended that the term cruel and abusive treatment should have a broad construction. Before the statute making such treatment a cause of divorce was enacted, Mr. Justice Dewey had said, in Pidge v. Pidge, 3 Met. 257, that angry words, coarse and abusive language, or grossly intemperate habits might bring greater sufferings upon a refined and delicate woman than a single act of violence upon her person ; and might well, in the reasonable judgment of the public, authorize her withdrawal from the society of her husband. The English ecclesiastical courts had also adopted a much more comprehensive definition of the term “ extreme cruelty ” than our court had done in the early cases above cited. The subject has been much discussed in those courts, and the cases are collected and commented upon in Bish. Mar. & Div. c. 37, and Shelford Mar. & Div. 425 et seq. It may be well to refer to a few of the cases here.

In Otway v. Otway, 2 Phillim. 95, it was held that cruelty may be without blows; and if it creates danger to the person or health, that is sufficient. In Smith v. Smith, Ib. 207, several circumstances are enumerated as constituting cruelty without personal violence. In Holden v. Holden, 1 Hagg. Con. 458, scevitia is defined to be that which tends to bodily harm, and in that manner renders cohabitation unsafe. In Tomkins v. Tomkins, 1 Swab. & Trist. 148, danger to life, limb or health is said to be the rule; trifling or temporary pain is not enough, but there must be bodily hurt, or reasonable apprehension of bodily hurt. Blows do not, in all cases, constitute scevitia. In Shelford, p. 428, it is said,"“ A blow between parties in the lowei conditions and in the higher stations of life bears a very different aspect. Among the lower classes, blows sometimes pass between married couples who in the main are happy, and have no desire to part. Amidst very coarse habits such incidents occur almost as freely as rude or reproachful words; a word and a blow go together/' And in the recent case of Milford v. Mil*380ford, Law Rep. 1 P. & D. 295, the Judge Ordinary held that the violence must be of such a character as to endanger personal health or safety, or there must be reasonable apprehension of it, and that the ground of the court’s interference is the wife’s safety, and the impossibility of her fulfilling the duties of matrimony in a state of dread.

It is obvious from these authorities that there may be personal violence which does not amount to what is regarded as cruelty; and that there may be cruelty without personal violence. And in every case the character and condition of the parties is to be taken into consideration; and the practical judgment of the court or jury must be exercised in each particular case. It is also to be observed that our statute is not vague, but states with accuracy and care the specific causes for which divorces from bed and board may be granted, and that such indefinite grounds as incompatibility of temper and the like are not mentioned, and are not causes of divorce. It was evidently framed under the influence of such views as were expressed by Lord Stowell in Evans v. Evans, 1 Hagg. Con. 35. He says : “ The general happiness of the married life is secured by its indissolubility When people understand that they must live together, except for a very few reasons known to the law, they have to soften, by mutual accommodation, that yoke which they know they cannot shake off; they become good husbands and wives from the necessity of remaining husbands and wives.” And experience has node it manifest that where divorces are easily obtained, and for slight causes, family difficulties more easily arise and are more difficult to settle; the peace and good morals of the community are more exposed to injury; and children are much more exposed to the great and inseparable evils that follow divorces.

Upon consideration of the whole subject, a majority of the court are of opinion that where a divorce is sought on the ground of cruelty, whether it be cruel and abusive treatment, or cruelty in neglecting or refusing to provide suitable maintenance for the wife, a reasonable construction of the statute requires that it shall appear to be, at least, such cruelty as shall cause injury to life, limb or health, or create a danger of such injury *381or a reasonable apprehension of such danger upon the parties continuing to live together. This is broad enough to include mere words, if they create a reasonable apprehension of personal violence, or tend to wound the feelings to such a degree as to affect the health of the .party, or create a reasonable apprehension that it may be affected.

If it be supposed that this interpretation of the statute does not sufficiently provide for a class of cases where, though the abusive language or conduct of one party does not affect the health of the other, yet it makes the life of the other so wretched and intolerable that a divorce ought to be granted on account of the cruelty, we think such supposed cases cannot actually exist. For deeply wounded sensibility and wretchedness of mind can hardly fail to affect the health. And where there is not this evidence of injured feeling, we can see no ground for granting a divorce that is not uncertain and dangerous, and that would not authorize divorces for slighter causes than the legislature apparently contemplated.

The other question reserved relates to the request of the libellant’s counsel for instructions based on the assumption that the jury would believe the testimony of the libellant. Several witnesses had testified, and the evidence was somewhat contradictory. A judge is under no obligation to select the testimony of a single witness in a case, and instruct the jury what their verdict should be if the testimony of that witness is true. The request was addressed to his discretion; and no exception lies to his decision in such a case. He had given instructions as to the principles by which the jury were to be guided, and the only point in which they were excepted to has been considered.

Libel dismissed.