Morehouse v. Morehouse

70 Conn. 420 | Conn. | 1898

Hamebsley, J.

The plaintiff and defendant have lived in this State since June, 1890. The court finds that when they came to Connecticut they intended to make their home here. There is nothing in the evidence certified at request of both parties, to indicate that this finding violates any principle of law. Having made this State their home, the fact of spending their winters in the city of New York is not inconsistent with their continued residence here; and the court did not err in finding that the plaintiff had, as required by statute, “ continuously resided in this State three years next before the date of the complaint.” General Statutes, § 2806.

The defendant claims that the facts found by the court do not constitute “ intolerable cruelty.” When our legislature, in 1843, adopted as grounds of divorce a vinculo, “ habitual intemperance ” and “ intolerable cruelty,” it used these words with their ordinary meaning, but with special reference to what had been since 1639 our settled policy in respect to divorce; i. e., marriage is a life status and should never be dissolved, unless one of the parties is guilty of conduct which in itself is a practical annulling and repudiation of the marriage covenant. Wilful desertion for such, a length, of time as the statute says shall conclusively prove a permanent abandonment and repudiation of all marital rights and duties, had been a ground for divorce. Following this analogy the legislature, in 1843, made grounds of divorce: intemperance so long continued that the fixed habit renders the party incapable of performing the duties of the marriage relation; and cruelty of such a nature as to be intolerable, and to render a continuance of the relation by the suffering victim impracticable. Dennis v. Dennis, 68 Conn. 186, 192. Mere faults of temper and of manner do not constitute such cruelty. There are disagreeablenesses and trials causing much -weariness and suffering which parties to the marriage contract must bear; the policy of the State, as well as the sacred nature of the marriage covenant, requires patient endurance. But there are injuries and insults which are outside the pale of that covenant; submission to which was never contemplated, and which are not to be borne. No complete definition can be given, because the exhibitions of cruelty cannot be forecast.

In the present case it appears that the defendant treated his wife, a lady of culture and refinement, as follows: Knowing that she was affected with a heart trouble and that his conduct would aggravate it, he frequently appeared before her in an intoxicated condition, humiliated her by his vulgar and profane language, and abused her with vile and unfounded charges. On many occasions his conduct made her ill, a result which he knew would follow such treatment. While affected with an infectious disease, which he knew could be communicated to his wife by intercourse, he solicited intercourse (she being ignorant of his condition) and communicated to her the disease, from the effect of which she suffered for months. Afterwards, while still having this disease, he solicited intercourse with her and, on her refusal, insisted and attempted to accomplish his purpose with actual violence. As a result of the defendant’s treatment of her, the plaintiff was made seriously and dangerously ill.

This is intolerable cruelty. The mere statement of such conduct demonstrates its character. Mayhew v Mayhew, 61 Conn. 233; Brown v. Brown, L. R. 1 P. & D. 46; Kelly v. Kelly, L. R. 2 P. & D. 31.

The testimony of the witness Curtis relative to conversations with the defendant, was admissible for the purposes for which it was offered. If it should be regarded as strictly evidence in chief, its admission in rebuttal was a matter of discretion, and the discretion was not abused.

It is difficult from the record to see how the testimony of Curtis as to his interviews with the plaintiff after she had left her husband, was material; the evidence given, however, could not have injured the defendant.

The defendant claims in argument that the judgment is erroneous, because the record does not show a formal denial of the allegation in his answer charging the plaintiff with adultery; that the allegation is therefore admitted and constitutes a bar to the action. This claim was not made in the court below, and is not distinctly specified in the reasons of appeal. The allegation was treated by the parties upon the trial as denied; evidence tending to prove it was offered by the defendant and contradicted by the plaintiff, and it is found by the court to have been disproved. Moreover, by going into any trial the defendant treated the allegation as denied; if, as he now claims, the adultery of the plaintiff was admitted upon the record, he was entitled to a judgment without trial. He is estopped from now making tins claim.

The errors claimed to have been made by the trial court in finding from the evidence its conclusions of fact, cannot be considered. Thresher v. Dyer, 69 Conn. 404, 408.

There is no error in the judgment of the Superior Court.

In this opinion the other judges concurred. '