Forrester v. Forrester

57 So. 553 | Miss. | 1911

Whitfield, C.

We concur in the conclusion reached by the chancellor that the first decree for divorce should be set aside; but, after careful consideration of the whole record on the merits, we are constrained to differ from him in denying the divorce and dismissing complainant’s bill. The marked ability of the learned chancellor would constrain an affirmance, if. we were not throughly satisfied from the whole evidence and by the deductions to be drawn from it that the complainant has satisfactorily made out her ease. The testimony is not limited to a single act of violence, but covers their relations and his treatment of her for several years. That he struck her is certainly clearly established, and the blow was so severe as to blacken the arm and cause it to remain so for about a week or more. It seems clear, too, that in his rage he broke up and destroyed certain trinkets and toys that had belonged to their dead child. She had left him once before, but had returned in the hope of being able to live with him; and the evidence, we think, makes it plain that slie left the second time in great fear of what he might do to her if she should remain. All the testimony relative to his cursing her, and his conduct in respect to taking home things which belonged to her, and the return of which she secured only after a vigorous suit at law, coupled with many other circumstances scattered through the record, such as, for example, making her work barefooted in the field, makes it seem to ns certain that -justice required the granting of the divorce.

We are impressed with the idea that the chancellor must have given too much weight to the letter which the wife was alleged to have.written to her husband. The sum and substance of her testimony as to whether she wrote the letter was that she would not testify positively that she wrote it, or did not write it; that she may have written it, but she did not believe she had done so. Even if she had written the letter, as seems most probable, that fact does not negative the treatment of her by him in the past, which the evidence abundantly shows. That treatment is not such as holds out much hope of better relations in the future, should the divorce be denied and the parties united again. The question is, not whether that letter was written or not, but whether, on the whole case, she was entitled under the statute to the divorce. We think she was.

As the bill calls for alimony, no decree will he entered here, but the cause will be remanded.

Per Curiam.

The above opinion is adopted as the opinion of the court, and for the reasons therein indicated the decree setting aside the first decree for divorce is affirmed; but the decree denying the divorce on the second hearing and dismissing complainant’s bill is reversed, and the cause is remanded, to be proceeded with in accordance with this opinion.

'Reversed and remanded.