Freeborn v. Freeborn

168 Mass. 50 | Mass. | 1897

Allen, J.

This case comes to us on a bill of exceptions, and the question is not whether, on the facts stated, the presiding justice would have been warranted in granting a divorce, but whether, as matter of law, these facts gave the libellant an absolute right to a divorce. No doubt there may be such an habitual or frequent use of exasperating language as to warrant the granting of a divorce when injury to health follows. Bailey v. Bailey, 97 Mass. 373. Holyoke v. Holyoke, 78 Maine, 404. But when cruel and abusive treatment is charged, and the proof consists merely of words spoken, and these words contain no threat of actual violence, the purpose and intent of speaking them may be considered. W- v. W-, 141 Mass. 495. In the present case it would seem that the libellee intended to sting the libellant’s feelings, and her treatment may well have justified him in living apart from her. But there may be misconduct justifying separation for a while, which will not require the court to grant a divorce. Lyster v. Lyster, 111 Mass. 327. The facts found did not require the final step of granting an absolute divorce. Though the libellant was affected injuriously in his health to some extent by her acts and words, she had no purpose to harm him in this manner, but in part was moved by what seemed to her good. motives, and by a desire for his success in life, and in part by her own nervous condition, she being in reality strongly attached to him, and her feelings being affectionate. The caso is by no means so strong as Kelly v. Kelly, 2 P. & D. 31, 59, where a wife obtained a divorce for a course of too severe moral discipline; or as Prichard v. Prichard, 3 Swab. & Tr. 523, where a husband obtained a divorce on account of the abusive treatment of his wife, though in this instance there were also some blows, which he did not care to repel with force. In Johnson v. Johnson, 49 Mich. 639, a case having some resemblance to the present, a series of petty annoyances by the wife, accompanied with words of disparagement of her husband’s common sense, were held not to entitle him to a divorce.

On the whole, the decision of the presiding justice must be accepted as final.

Exceptions overruled.