Cooper v. Cooper

10 La. 249 | La. | 1836

Bullard, J.,

delivered the opinion of the court. -

The plaintiff, who sues for a separation from bed and board, represents in her petition, that she intermarried with the defendant in 18,32, and that they lived together for some time pretty well; but that notwithstanding her affectionate and proper conduct, he some time afterwards commenced a course of mistreatment towards her, which continued to grow worse and worse, frequently cursing and abusing her in the most shameful manner, insomuch that it has rendered their further cohabitation utterly insupportable, and that he at last'ordered ber out of his house, and she has taken refuge at the house of her mother.

The fact that the husband and wife lived unhappily together, and sometimes cursed and abused , each other, and where the husband even went so far as to push the wife out of the door, but without any hurt, will not authorize the wife to obtain judgment of separation of bed and board, with a view to a final divorce. In an action for a divorce by the husband, on the ground of adultery of his wife, the fact of adultery must be fully proved. It will' not suffice that her conduct be extremely suspicious to entitle him to judgment.

The defendant, in his answer, alleges, that he always treated the plaintiff in a kind and proper manner, until her conduct became' so openly and notoriously lewd, immoral and improper, that it was no longer supportable, and, he admits, that he may on some occasion, when excited by the bad conduct of the plaintiff, and her unblushing avowal of her own dishonor, have expressed himself in indignant and harsh terms of her. He further alleges, that his wife has been guilty of adultery with one William McDaniel, and that she has, on many occasions, gone about the neighborhood both by day and night, to balls and other places of amusement, with different men, contrary to his express wish and command, sometimes absenting herself from home for two or three days and nights at a time. He therefore claims in reconvention a divorce a vinculo matrimonii.

The evidence to prove the cruel treatment on the part of the husband is very vague. The parties appear to have quarrelled and abused each other a good deal, but it is not so clear who was to blame. The only personal violence shown, consists in his pushing her out of the door on one occasion, but he appears to have been provoked by an insinuation on her part that he was not a gentleman, and that the owner of the house in which they lived was. It further appears that she went back into the house through the same door, and that the husband then walked off. On this occasion she cursed and abused her husband for threatening a negro girl for having told lies about the plaintiff’s own daughter.

According to the principles upon which this .court proceeded, after much consideration, in the cases of Fleytas vs. Pigneguy, 9 Louisiana Reports, 419, and of Tourné vs. Tourné, Ibid., 450, we are of opinion the plaintiff has totally failed to make out a case for relief.

With respect/to the demand in reconvention for a divorce, on the ground of adultery, we are of opinion, that the fact of adultery is not sufficiently established by the evidence, although the circumstances are extremely suspicious. Her avowal, as alleged by the defendant, is certainly not proved. If it had been, and he continued to cohabit with her and become reconciled to his own dishonor, and took upon himself to punish or to reform her, instead of appealing for re(jregs to |-qe iaws 0f the country, it is questionable whether he could afterwards be permitted to complain. Upon the r V r whole, we conclude, that the prayer of neither party ought he granted. The question with this court is not whether ^ ^01' ^le parties, or for society, that a separation should take place in cases like the present, but whether the parties have brought their case within the law which regu-^ates khe most important relation of social life,

Even where the husband ^nows ™u.s. conduct ot his wiie, but continues to live comes ’ dishonor118 and takes upon Mm-to' rfonm'te” ing'to'theTawflt is questionable wardsbepermlt-ted to complain.

It is, therefore, ordered, adjudged and decreed, that the jU(jg.ment D¡strict Court be annulled, avoided, and reversed; and it is further ordered, that the suit be dismissed, and that the plaintiff pay the costs in both courts.