130 Ky. 349 | Ky. Ct. App. | 1908
Affirming.
In this action the plaintiff, Daisy M. Coles, aslcs for a divorce from the defendant, Willard Coles. She also seeks alimony for herself and maintenance for her two infant children, who are of tender age. She further asks for a settlement of the property rights between herself and husband involved in a house and lot jointly owned by them, claiming not only one-half of the proceeds of the property, but the reasonable rental value of her one-half interest therein since the date of separation. This property was paid for one-half by the defendant and one-half-by plaintiff’s father. As a ground for divorce, plaintiff alleges that the defendant, Willard Coles, as her husband, has habitually behaved towards her as his wife for more- than six months in such a cruel and inhuman manner as to indicate a settled aversion to her and to destroy permanently her peace and happiness. She also alleges that the defendant has so cruelly injured her as to indicate an outrageous disposition and temper in him, and has thereby destroyed her health and endangered her life and caused her great bodily injury, and has rendered her in danger of great bodily injury, and probable danger of her life, in remaining with him. Judgment was entered denying plaintiff the relief sought, and she appeals.
Appellant’s contentions are: (1) The judgment should be reversed for the failure of the court to adjudge plaintiff the rents for the use and occupancy by her husband of her undivided one-half interest in the house and lot which they jointly own. (2) The judgment should be reversed because appellant made
It is insisted by appellant that her grounds far divorce were made out by proof of abuse in sexual intercourse by the husband which destroyed her health and endangered her life. Appellant relies upon the proposition of law set forth in 14 Cyc., at page 610, where it is said: “Sexual intercourse persisted in by the husband against the will of the wife to the injury of her health is cruelty affording her ground for divorce, if he knows or has reason to know the injury and suffering which his demands will inflict upon her” —citing Mayhew v. Mayhew, 61 Conn, 233, 23 Alt. 966, 29 Am St. Rep. 195; Youngs v. Youngs, 33 Ill. App. 223; Id. 130 Ill. 230, 22 N. E. 806, 6. L. R. A. 548, 17 Am. St. Rep. 313. Counsel for appellant insists that, although it is extremely difficult to prove facts constituting the ground of divorce urged, the proof in this case abundantly supports the conclusion that appellee, with knowledge of his wife’s condition, persisted in having sexual intercourse with her under such circumstances as endangered her health and life, and it amounted to cruelty on his part. According to the testimony of two physicians and of appellant’s mother and father, appellant suffered frequently from severe nervous headaches and from pains in the abdomen in and near the region of the pelvis. The physicians state, however, that in their opinion such conditions were of rheumatic origin. There is nothing in their testimony to indicate that the conditions were produced by excessive sexual intercourse. The only thing in the record from which excessive sexual inter
The testimony shows that appellant left the home of appellee. She has failed to show that it was due to any fault on his part. Haying abandoned her husband without just cause, so far as the record discloses, she is not entitled to a divorce, either absolute, or from bed and board. Nor is she entitled to any-rents from the home which she voluntarily abandoned.
For the reasons given, the judgment is affirmed, and appellee will pay the costs.'