81 Vt. 173 | Vt. | 1908
A divorce from the bond of matrimony was decreed in this case for “intolerable severity.” The treatment found is, in substance, not any personal violence, but that the libellee repeatedly accused his wife of adultery with two certain men, which accusations were sometimes made when he and his wife were alone, sometimes when others were present, especially their adopted son, who was sixteen or seventeen years old, and sometimes to others when his wife was not present, and that he had used harsh and abusive language to her, and called her vile names. It is found that there was no probable nor reasonable cause for the libellee to believe that his wife was guilty of adultery with either of those men, nor even of improper conduct with one of them, and that his accusations were groundless and false, and occasioned her “much mental suffering”; but that the libellee believed that improper relations existed between his wife and one of those men, and still believed so, but that this belief rested on no other foundation than his 'jealousy, arising, perhaps, from a certain transaction she had with that man, which, however imprudent on her part, did not justify the libelee’s accusation of adultery with him. As to the other man, the court was unable to find that the libellee believed the accusation after he investigated the matter, which he did soon after the time when he claimed the adultery was committed. As to whether the “mental suffering” of the libellant injured her health, or might reasonably be expected to injure it, there is no finding.-
The principal question is, whether the facts found make a ease of “intolerable severity” within the meaning of those words as used in the statute. The libellee’s counsel contend that by the great weight of authority, both English and American, a false charge of adultery, made without reasonable or probable cause, unaccompanied by any act of personal violence, or any apprehension of such act, and unaccompanied by such injury to the feelings as to affect health, or to create a reasonable apprehension that it may affect health, does not constitute legal cruelty. The libellant’s counsel say that the words, “intolerable severity,” are not found in the divorce laws of any other state; that the language most commonly used is, “cruelty,” “extreme cruelty,” “cruel and inhuman treatment,” and the like; that both courts and elementary writers seem to have found difficulty
We regard this as a substantially correct statement of the law of this subject as at present generally held, both in this country and in England. It accords with Mr. Bishop, when he says that as late as when he wrote the first edition; of his "Marriage and Divorce,” it seemed to be the prevailing judicial opinion that mental suffering had nothing to do with bodily dlls; at least, that it did not so directly create those ills as to render the infliction of such suffering legal cruelty; but that now, under more enlightened physiological views, the legal doctrine has become settled everywhere, he thinks, that conduct that produces pain of mind is cruelty whenever, operating alone or in combination with something else, it creates a danger to the physical health. 1 Bish. Mar. Div. & Sep. §1563. And in §1565 he says that this doctrine, having been affirmed in this country, has become fully established in England, as shown by Kelley v. Kelley, L. R. 2 P. & D. 31, and on Appeal, *59.
But the libellant’s counsel are not satisfied with the law as they say it is, because it is too narrow for a just and righteous administration of it in cases like this, in which, they say, the wife should not be compelled to wait till her mental suffering has produced or threatened bodily harm; and therefore they urge the Court, as it is not hampered by precedents of its .own, to take a position more consistent with the interests of humanity, to the attainment of which, they say, the courts of some of the
The libellant’s counsel refer to cases from all of these states, except Missouri, as showing the way they want us to take. They also refer to cases from some of the other states, and among them, to Waltermire v. Waltermire, 110 N. Y. 183. But that case is not with them. There it appeared that on one occasion the husband laid violent hands on his wife, led her to the door, threatened to knock her down, and struck at her twice; that on another occasion, falling to the floor from sickness, he said it was a pity she ever got up, and again said to her, “I shall be glad when you draw your last breath. ’ ’ He called her “all the bad names that belong to a bad woman,” and accused her of adultery with different men in the neighborhood. The court said that these were the gravest circumstances that characterized his treatment as “cruel and inhuman,” though there were others that made her life miserable, and rendered it unfit for her to live with him, and impossible for her to do so with any sense of self-respect or with any comfort. The court said that the ill-feeling of the husband towards his wife was manifested repeatedly, not by mere petulence or rudeness, but by a series of acts of personal violence, and a continued use of insulting lan
Nor does New York occupy the position we are asked to take, as shown by Kennedy v. Kennedy, 73 N. Y. 369. There the court said, in the language of Lord Stowell in Evans v. Evans, 1 Hog. Con. 35, that “mere austerity of temper, petulance of manners, rudeness of language, even occasional sallies of passion, if they do not threaten bodily harm, do not amount to legal cruélty.” The court then went on to say that these things may cause discomfort, mental anguish and suffering, but, in the further language of Lord Stowell in that case, “the answer is that courts of justice do not pretend to furnish cures for all the miseries of human life.” But the court said that threats of violence by a husband to his wife, of a character to induce a reasonable apprehension of bodily injury, and charges of infidelity, made in bad faith as auxiliary to, and in aggravation of, the threatened violence, are sufficient to constitute “cruel and inhuman treatment,” within the meaning of the statute authorizing a limited divorce.
Counsel also refer to Braun v. Braun, 194 Pa. St. 287, 44 Atl. Rep. 1096. But that case is not to their purpose, for in Pennsylvania the cruel and barbarous treatment of the wife must be such as to endanger her life, and it must be taken that the jury found it to be of that character, else its verdict would not have been justified, as the court said it was.
Mr. Bishop suggests what he calls a fair and just way of judicial escape from what he thinks are some'of the absurdities of the books, without violating the doctrine of stare dicisis, as that doctrine applies only to law, not to fact. He says that mental anguish, when deep and protracted, may well be deemed as dangerous to physical security as blows, and to occupy the same ground in the evidence of cruelty, and although-this is a question of fact, that the court may as well take judicial notice of it as of the effect of blows. But he goes on to say, what makes against the idea of judicial notice, that if, in a particular case, it is the opinion of the court or the jury determining the fact, that the wife’s health is in danger from ill conduct of the husband addressed primarily to the mind, she should have a divorce. 1 Bish. Mar. Div. & Sep. §1552.
But this is not the position of the cases generally, and we are not prepared to adopt it. It is but recently, as we have seen, that the courts have come to think that mental suffering has anything to do with bodily ills; and it 'is too much to say that it is so certain that it does and will harm the body, and that this fact has, in so short a time, become a matter of such common knowledge, so known and notorious to all men,, as Wigmore puts it, that it can be judicially noticed in all cases. There may be eases in which such notice may well be taken; as, where the facts and circumstances are so decisive of bodily harm, actual or apprehended, that there can be no difference of opinion about it. But in cases short of that, we think the substantive fact must be found before it can be said to exist.
Nor do we regard the case in hand of the decisive character mentioned. The libellant herself, fifty-one years old, and in ordinary good health for a woman of her age, did not seem to be particularly apprehensive of bodily harm from the treatment of her husband, for she continued to cohabit with him till they left the farm the first of November, 1904, and although they never again set up housekeeping and lived together as husband and wife, yet on various occasions they occupied the same bed when visiting relatives, and occasionally had sexual intercourse up to and including January 5, 1905, two days after which he left her, much against her earnest protest and wishes, and went to Massachusetts to live, whither she went to see him, but did not, because he fled to Rhode Island to avoid her. She wrote to
We hold, therefore, that the essential fact of bodily harm, or of a reasonable apprehension of such harm, is not established, unless we presume in favor of the judgment that the trial court inferred that fact from those certified up. But we cannot well do that on this record, especially as it says that the court decided the ease “upon the findings of fact,” which seems to preclude, or to make doubtful at least, the idea that the court inferred the all-essential fact from those findings.
The libellee testified that he wanted his wife to have a divorce, and his counsel, in written suggestions for findings of fact, asked the court to find that he wanted his wife to have a divorce, but was unwilling she should have more than a third of what he was worth; that he was unwilling to imperil his creditors, or to^be maA^i^sol^gnt'^by paying h%- alimony. The libellant’s counsel say that this was, in effect, asking the court to grant a divorce, Jrat to make th$* alimony small, and that having got what they asked for in rejsp^ct of the divorce, they cannot be heard to complain of the amount of alimony. The court does not say how it understood that request, nor whether its action was influenced by it or not. We think it should not be construed as an asking for a divorce at all events, but only on condition that the alimony should not be more than a third of what the libellee was worth. But it was more than all he Avas worth, saying nothing about his earning capacity, which was $40 a month at the time of trial.
The libellee claims condonation. But if there ever was any, it was nullified by his wilful desertion, which, if continued the requisite time, would ripen into a cause of divorce. Langdon v. Langdon, 25 Vt. 678; Marshall v. Marshall, 65 Vt. 238, 26 Atl. 900.
Soon after the libellee left the State and went to Massachusetts to live, the libellant, believing him to be insane because he accused her so of adultery, commenced proceedings against him in the probate court of the District of Caledonia, for the
The libellee contends that his testimony in the guardian case as to his wife’s adultery was privileged, as it was relevant and material, and therefore could not be shown here as ground for a divorce. This contention is sustained, for whatever a
As bearing on the question of the libellant’s character, and on the question of intolerable severity, the libellee offered to show that the libellant had a very wilful, unpleasant, and domineering disposition. The evidence was excluded, but the witness was allowed to give the language of the libellant, and to specify her acts, but not to characterize either. The libellant does not claim that this kind of evidence was not admissible, but that this was as far as the witness could go without invading the province of the trier; that the character of one’s disposition is determined by his language and conduct, and cannot be otherwise indicated by a witness. Mr. Wigmore says that there are numerous cases that exclude, under the opinion rule, statements by observers involving sundry inferences as to another’s state of mind, and even as to his pwn state of mind, while in other jurisdictions such testimony has been expressly sanctioned. But to show how baseless the exclusionary rulings are in the orthodox practice of the common law, he gives extracts from the annals of two generations of English trials. 3 Wig. Ev. §1963. Such testimony comes fully within the rule in this State, that when the witness has had personal observation, and the facts and circumstances that lead his mind to a conclusion are incapable of being detailed and described so as to enable any one but the observer himself to form an intelligent conclusion from them, the witness is allowed to add his opinion, or the conclusion of his own mind; as, in question of identity, handwriting, value, time, distance, insanity, affection, dislike, etc. Clifford v. Richardson, 18 Vt. 620; Cavendish v. Troy, 41 Vt. 99, 108. It was error, therefore, to restrict the testimony as it was restricted.
It was error to allow the libellant to show that she was owing $50 for summoning witnesses in the guardian case, and $395 for legal services therein. Those were debts for which the
The other questions, being of minor consequence and not likely to arise again as now presented, are not considered.
Judgment reversed and cause remanded.