135 S.W. 751 | Tex. App. | 1911
This is a suit for divorce instituted by appellee against his wife, who is the appellant herein. The cause was submitted to a jury, and resulted in a verdict for a divorce in favor of appellee, upon which the court rendered a judgment dissolving the bonds of matrimony between the parties, and awarding the custody of Lucile Ursula Lohmuller, aged nine years, and William J. Lohmuller, aged six years, their children, to the appellant, their mother.
If an object lesson were needed to show the vicious and degrading effects of the act of 1897, which with ruthless hand swept aside the beneficent rule tested by the wisdom of ages that neither husband nor wife should be allowed to testify in a suit for divorce, this would furnish it. But in line with modern thought that makes the marriage contract a trivial affair, to be set aside for the most frivolous reasons, the dragon's teeth were sowed, and the courts are being made the outlets of the most disgusting details of the inner lives of married people, homes are being disorganized and broken up, children branded with disgrace, and the most sacred relation on earth made a subject of ribaldry and ridicule in a way that is polluting the fountains of American society. The floodgates of scandal and disgrace were opened up by the Legislature of Texas, in the face of the solemn warnings of the wisest and best men on the bench who have written on the subject. In the case of Stafford v. Stafford,
The uncontradicted evidence showed that appellant was a nervous, frail woman, who would probably die if she bore another child, and appellee was fully advised of that fact by the family physician, and he was also told that he should not demand that his wife submit to his embraces, except under certain conditions, which condition appellee stated rendered him nervous and made him sick, but which the only physician who testified stated could not and did not injure him; in fact, could have no hurtful effect whatever. Appellee stated that under the conditions prescribed by the physician he lived with his wife from some time in 1905 until 1909, when he abandoned her and instituted this suit. He stated that the happy period of his married life ended shortly after the birth of the last child in 1905, but the affectionate letters written by him to his wife in July, 1908, when he applied the most endearing terms to her, and seemed to be brimming over with love and affection for her, render the statement unworthy of belief, and it was only in December, 1908, that "a change came over the spirit of his dreams," and he endeavored to obtain his wife's consent to a separation, and it appears that about that time his chivalrous feelings in connection with other women were aroused to such a degree that he had to escort them from their places of business to their places of abode, and incidentally, on one occasion, at least, he had "a nice little drive" with one woman after night's shadows had fallen upon San Antonio. Of course, he meant no harm by this, but very naturally such matters were not calculated to produce a state of hilarity, or feelings of composure, in his wife. Appellee not only revealed the most confidential matters that occurred between him and his wife, but testified that she sought to attack him with a gun, which was shown never to be loaded, and that she had threatened to poison him. All these threats were made according to appellee just before he abandoned his wife. He admitted that four or five months before he abandoned his wife his "love turned against her," and it is uncontradicted that he told her about it, and it is only natural that it should excite her and render her suspicious and jealous of him. And yet amidst all the contumely and reproach and threats and attacks on his person this model husband testified that he *753 "never lost his temper," but insisted on doing things, which, he stated, at the time he believed would result in the death of his wife. While he stated that he believed his wife "is a murderess by the lowest, meanest, and most cowardly method, by poison," yet he was willing that she have the custody and rearing of his daughter and son. He closed his testimony by the admission that "the real and substantial cause of difference between me and my wife, and cause of all this trouble between us has been, not all altogether, that she would not submit to risk her life to gratify my passion. That very thing was the beginning and end of all the difficulty, and that's the cause." The evidence of appellant's mother was mostly hearsay and really amounted to nothing.
The refusal to accede to the passion of a man who knew that childbearing would destroy the life of his delicate, nervous wife, and who was unwilling to inconvenience himself in any way to prevent such a catastrophe, would not constitute such "excesses, cruel treatment, or outrages" toward him as would entitle him to a dissolution of the marriage ties. Even an unjustifiable refusal of marital rights is not necessarily a cause for divorce, and when there is no refusal but merely certain conditions are prescribed which cannot injure the husband, but will protect the wife from probable death, the divorce should not be granted. Varner v. Varner,
The ill treatment and harsh language testified to by appellee, and in some particulars by his mother, were not known by the most intimate friends and relatives, according to the record, but in order to show a reason for any accusations on the part of the wife, and to explain her jealousy and distrust of her husband, who had informed her of his dead love for her, she ought to have been permitted to prove by the witness Dullnig that he had seen appellant in a buggy with a woman, not his wife, after night, and that he had communicated that fact to the wife. So jealously has the marriage contract been guarded by the laws of Texas that judgments by default are not to be tolerated, nor the want of an answer be construed as a confession of the truth of the allegations in the petition, "but the decree of the court shall be rendered upon full and satisfactory evidence." Article 2979, Rev.St. 1895. This requirement should be jealously enforced by the courts of the country, and there should be more caution and scrutiny of the facts and circumstances in this day of "affinities" when the barriers of the common law have been destroyed and husband and wife have been given unbridled license in testifying against each other in cases of divorce. As said by the great Hemphill in Sheffield v. Sheffield,
At least four of the jury seem to have held the idea that the marriage relation should be dissolved whenever the parties are willing to throw it off, and they even went further and found in favor of dissolution of the marriage for the reason that appellee was dissatisfied with his wife, because in an affidavit attached to the motion for new trial they stated that "they did not believe from the evidence in said cause that defendant had been guilty of cruelty and excesses to her husband, but that they, in good faith, believed that said parties would not come together as husband and wife." The affidavit of the jurors, the use of which is justified perhaps by the statute (Acts of 1905, p. 21) as part of a motion for new trial, shows an utter disregard of the evidence and a verdict based on matters of opinion which had no place in the case.
Giving full force and effect to the evidence of appellee and his mother in regard to the threats of his wife, the testimony is insufficient to justify a divorce. All of those matters came after he had refused to cohabit with his wife, and after he had lost his love for her and had told her about it, and they were the natural offspring of his inexcusable conduct. With it all he testified she was not a wicked woman, and with it all he was willing to intrust the welfare and happiness of his young children to her care. Even if the acts complained of had not been provoked by appellee, they were not sufficient to constitute grounds for a divorce. Adams v. Adams,
The record shows a full development of the evidence in the case, and, deeming it insufficient to justify a decree of divorce, the judgment will be reversed and judgment here rendered that appellee take nothing by his suit, that a divorce be denied, and that he pay all costs of this suit.