62 N.H. 463 | N.H. | 1883
It is contended that the defendant's conduct in the particulars alleged comes within the true construction of the statute making "extreme cruelty of either party to the other" (G. L., c. 182, 8. 3) a cause for divorce. It is not charged that the defendant has inflicted or offered violence to the person of her husband, by blows or force, or threatened to do him bodily harm. It is not even charged that the conduct of the defendant has occasioned the plaintiff bodily or mental injury; but such, we understand, is his position. The question then is, whether abuse which operates on the mind, and thus produces ill-health, is legal cruelty.
The word "extreme" is used in the statute for the purpose of giving to the conduct of the guilty party the character which the word implies. Cruelty as a matrimonial offence is defined to be "such conduct in one of the married parties, as, to the reasonable apprehension of the other, or in fact, renders cohabitation physically unsafe to a degree justifying a withdrawal therefrom." 2 Bish. Mar. Div., s. 717, and authorities cited. Under our statute the injury must undoubtedly be of a serious or permanent character, or the conduct must be such as to cause reasonable apprehension of such injuries. In the leading case of Evans v. Evans, 1 Hag. Cons. 35, the doctrine is laid down that "there must be *465 either actual violence committed, attended with danger to life, limb, or health, or there must be a reasonable apprehension of such violence." And such is the doctrine of most of the cases.
In Harratt v. Harratt,
In Poor v. Poor,
In Day v. Day,
In Bailey v. Bailey,
The tendency of the decisions until recently was, that language or conduct creating mental distress merely was not ground for divorce. The doctrine of Harratt v. Harratt and Bailey v. Bailey seems, however, to have been accepted on both sides of the Atlantic. Butler v. Butler, 1 Pars. Eq. Cas. 329, decides "that whatever form marital ill-treatment assumes if a continuity of it involves the life or health of the wife, it is legal cruelty." The court say, — "To hold absolutely, that if a husband avoids positive or threatened personal violence the wife has no legal protection against any means short of those which he may resort to, and which may destroy her life or health, is to invite such a system of infliction by the indemnity given the wrong-doer. The more rational application of the doctrine of cruelty is to consider a course of marital unkindness with reference to the effect it must necessarily produce on the life or health of the wife; and if it has been such as to affect or injure either, to regard it as true legal cruelty."
In California it is held that suffering inflicted on the mind is a ground of divorce when its effects are produced on the body. Accordingly, in Powelson v. Powelson,
Mr. Bishop (1 Mar. Div., s. 730, a., 6th ed.) claims that "not even apprehended injury to more than the mental part should be required; but accepting as sound the doctrine which demands more, still, equally to legal reason and to common understanding, it is as much an act against which the wife needs protection to pass the bane which will destroy the body through her mind as through her stomach." Again, in s. 733, he says "it is a reproach to the law . . . to say that it will permit a husband to ruin the health of his wife, or kill her in one particular way, but not in any other. If the body is the only thing to be *467 regarded in these cases, yet if we find various avenues to it, through any one of which may run the waters to drown its life or health, surely we cannot maintain that there is any principle of law whereby the approaches through one avenue shall be left open while the others are closed."
The cases of cruelty in the books are mostly where the husband was the guilty party. A variety of causes renders the infliction of cruelty by the wife on the husband less common than by the husband on the wife; but the same relief is given to a complaining husband as to a complaining wife.
We cannot say as matter of law that the defendant's conduct and abusive language to her husband did not permanently or seriously affect his health, or that there is not reasonable apprehension of such danger from the parties' continuing to live together. The effect of her conduct and language upon his health is a question of fact to be determined when the evidence shall be received and considered. It is possible that the sudden departure of his wife in the second week of their married life, the loss of his wearing apparel, the charge that he had committed the crime of bigamy, and the threat to pursue him to the prison walls, may have so shocked his mental sensibilities as to have permanently or seriously injured his bodily or mental health. On the other hand, it is not improbable that he survived the abrupt termination of his short married life, and the consequent destruction of his expectations of solace and comfort therefrom, without apparent or real injury to mind or body. If the libel is so amended as to set forth the mental or physical effects, which the plaintiff must prove, the question of fact will be tried at the trial term.
Case discharged.
CARPENTER, J., did not sit: the others concurred.