48 Pa. 226 | Pa. | 1865
The opinion of the court was delivered, by
— This was a libel for divorce, “a mensa et thoro,” in which the libellant set out two causes for a separation. They were, that the defendant, her husband, had “ turned her out of doors,” and “that he had offered such indignities to her person as to render her condition intolerable and life burdensome, and thereby force her to withdraw from his house and family.” The
Before proceeding to a consideration of the several exceptions taken, it may be observed that the main contest before the jury, if not the only one, had reference to that averment in the libel which asserted that the defendant had turned the libellant out of doors, either actually or constructively, by refusing to permit her to remain in his house when she offered to remain with a purpose to perform in good faith her conjugal duties. That he had refused to permit her thus to remain was distinctly proved by several witnesses, and the verdict of the jury has established this averment in the libel. Whether the conduct of the libellant had been such as to justify the act of the defendant, was then the only remaining question. Upon this the court was requested to instruct the jury, that if the facts testified to by several witnesses named, as to her obscene and abusive language,. the immoral conduct, the intemperate habits, and the violent acts of Mrs. Gordon, and her treatment of her husband, were proved to the satisfaction of the jury, they were such as would entitle David Gordon, the defendant, to a divorce, arid therefore constituted a legal justification of his refusal to permit her to return to his house and family. Such instruction the court refused to give, holding that the cause which will justify a husband in turning his wife out of doors is such cause only as would entitle him to a divorce if he were seeking it, and that the evidence of the conduct of the libellant did not exhibit a case which, under any Act of Assembly, is a sufficient cause for decreeing a divorce at the suit of a husband. To this the first three errors are assigned, and they are so intimately connected with each other that they may best be considered as one. That the rule was correctly given by which the alleged justification of the defendant was to be measured, may be seen by reference to Eschback v. Eschback, 11 Harris 343, and Grove v. Grove, 1 Wright 447. Of'this indeed there is no complaint. But it is insisted that the conduct of the libellant, as exhibited by the evidence, had been such before she was ejected from the defendant’s house, as to amount to one of the causes for which a divorce is allowed to a husband by the Act of Assembly. That it was bad, shamelessly bad, must be conceded. That it was such as to call for the abhorrence of every right-minded man, appears plainly from the
In the light of this legislation it is obvious the court below was right in refusing to affirm the defendant’s point, and in holding that he could justify turning the defendant out of doors only by showing that by cruel and' barbarous treatment she had rendered his condition intolerable and life burdensome ; or in the language of the Acts of 1815 and 1817, “ endangering his life in ruling that his evidence did not come up to that standard, and in putting the case to the jury on the single question, whether there had been a turning out of doors. Indeed, in strictness, to enable him to make use of any justification he should have pleaded it, for it was matter in evidence. But his answer made no averment of the libellant’s cruel and barbarous treatment. At most it averred personal indignities, which, however censurable and provoking, could not be enough for justification. And his evidence did not excel his averments. It proved insults and .personal indignities of the grossest character, hard to be endured, but they are not the cruel and barbarous treatment, which either endangers life or renders the condition intolerable or life burdensome. To hold that they are, would be to confound causes of divorce which the legislature has separated, and which have always been distinguished in judicial decisions. Conceding now that the defendant could have justified turning his wife out of doors, in this proceeding of hers for a divorce from bed and board and for alimony (which for the purposes of this case may be conceded), by showing cruel and barbarous treatment inflicted by her upon him, he must still have shown such cruel and barbarous treatment as under the Acts of Assembly would have authorized the court to grant him a divorce had he applied for it. We will not go into the question whi-ch has given the English courts and those of other states so much trouble, what is the cruelty that is ground for a separation. Perhaps the language of our Act of 1815 solves the difficulty by describing it as such treatment as endangers life. However that
The decree of the Court of Common Pleas is affirmed.