187 So. 670 | La. | 1939
This is an action for separation from bed and board instituted by the husband against his wife on the ground of cruel treatment and excesses. The suit was dismissed on defendant's exceptions of no cause and no right of action, and the plaintiff has appealed.
The pertinent allegations of plaintiff's petition, which, for the purpose of disposing of the exceptions of no cause and no right of action, must be accepted as true, are, in effect, that the defendant habitually indulged in games of chance (gambling) and made extravagant expenditures beyond plaintiff's financial ability to pay, causing him embarrassment and humiliation; that as a result of said excesses his wife neglected her household duties and constantly quarrelled, nagged, and abused him, to the extent that it interfered with his profession (doctor of medicine), which required his constant and undivided attention; and that he tolerated his wife's alleged excesses and cruelties, which extended over a long period of *292 time, in the hope that conditions would improve, but instead they have become so aggravated as to render their living together insupportable.
Article 138 of the Revised Civil Code recites the several causes for which a separation from bed and board may be obtained, paragraph 3 of which reads as follows:
"On account of habitual intemperance of one of the married persons, or excesses, cruel treatment, or outrages of one of them towards the other, if such habitual intemperance, or such illtreatment is of such a nature as to render their living togetherinsupportable." (Italics ours.)
Defendant's contention, apparently sustained by the lower court, is that the gambling and the extravagances of the wife, to whatever extent indulged, are not causes authorized by the code for a judicial separation from bed and board.
Plaintiff, however, contends that these indulgences and extravagances do not, per se, constitute cruel treatment sufficient to sustain his action, but that, taken in conjunctionwith the alleged resultant factors, i.e., neglect of domestic duties, continual and excessive nagging, quarrelling, disruption of his peace of mind, and mental harassment and humiliation, constitute "such ill treatment * * * as to render their living together insupportable" within the meaning and contemplation of the Revised Civil Code, Article 138.
Cruel treatment, under the jurisprudence of this state, is not confined to physical mistreatment, abuse, or injury, *293
but can, likewise, result from mental harassment alone arising from conduct that is the "very refinement of cruelty," without either force or blows. Olberding v. Gohres,
In the early case of Tourne v. Tourne,
"* * * A series of studied vexations and provocations on thepart of a husband, without resorting to personal violence, mightconstitute that degree of cruel treatment and outrages, whichwould form a just ground for a separation from bed and board." (Italics ours.)
In the later case of Spansenberg v. Carter,
In the case of Trautman v. Krauss,
"A majority of the members of the court were at first inclined to the belief that this petition did not disclose a cause of action for a decree of separation from bed and board, for the case is indeed a peculiar one. It can be decided with a betterunderstanding and greater assurance of doing justice from theevidence than from the allegations of the petition." (Italics ours.)
When the case was before this court on appeal from a judgment on the merits (Krauss v. Krauss,
"We said on the former hearing of this case, Trautman v. Krauss,
"We said, to the contrary, that:
"`It is not impossible that such nagging as the plaintiff has charged against her husband could amount to cruel and intolerabletreatment,'"
and commenting further stated:
"The courts will look, not so much to the originating cause of the cruel treatment, but to the nature and character of thetreatment itself in determining the question as to whether itamounts to such cruelty as to warrant a separation.
* * * * * *
"And where the conduct of a spouse is calculated permanently to destroy the peace of mind and happiness of the other so as utterly to destroy the objects of matrimony, a divorce may be granted on the ground of cruelty.
* * * * * *
"We must hold therefore that any unjustifiable conduct on thepart of either husband or wife which so grievously wounds themental feelings of the other, or such as in any other mannerutterly destroys the legitimate ends and objects of matrimony,constitutes cruelty, although no physical or personal violencemay be inflicted or threatened." (Italics ours.)
We are of the opinion that while the gambling habits or extravagances of either spouse are not per se grounds for *296 separation from bed and board, either or both, when carried to excess by one of the spouses, resulting in that spouse violating or neglecting his or her marital duties and responsibilities and culminating in quarrelling, nagging, or otherwise abusing the other spouse to the extent that it makes their living together insupportable, such conduct constitutes cruel treatment or excesses within the meaning and contemplation of paragraph 3 of Article 138 of the Revised Civil Code. While in the instant case the allegations of plaintiff's petition are very broad and, it may be said, somewhat inartistically drawn, possibly subjecting it to an exception of vagueness, this uncertainty cannot be availed of by exceptions of no cause and no right of action. It is our conclusion that the trial judge improperly sustained the exceptions.
For the reasons assigned the judgment of the lower court maintaining the exceptions of no cause and no right of action is annulled and set aside and the exceptions are hereby overruled, and the case is remanded to the lower court for further proceedings in accordance with the views herein expressed. Costs of this appeal to be paid by the defendant, all other costs to await the final determination of this suit.
O'NIELL, C.J., dissents. *297