67 Ga. 771 | Ga. | 1881
Mrs. Frances Myrick filed a libel in Crawford superior court against her husband, Marcellus A. Myrick. The libellant states in her petition, that she and her husband were married in the month of November, 1859, when she was only 17 years old, having been by her parents, up to that time, tenderly raised, cared for and educated. She prays for a divorce a vinculo matrimonii upon the grounds of cruelty by her husband to her, and of drunkenness upon the part of her husband. 1. The only question made, as to the latter ground, is that the charge of habitual drunkenness as a specific and distinct ground of divorce under the statute, is not sufficiently stated. So we think. To authorize a divorce upon this ground, the party must be guilty of habitual drunkenness. The charge is that he, the husband, frequently got drunk, and had several fits therefrom ; and although such excess may amount to habitual drunkenness, yet, as it is not in the language of the statute, we will not further consider that ground.
The specific acts of cruelty on which this quarrel is predicated, as detailed in the libel, are as follows:
. (1.) That within less than six months from the marriage, after petitioner was removed by her husband from*773 her parents to his house, her husband evinced great repugnance to her, treated her with great neglect and the utmost indifference, absented himself from home withont business, the greater part of his time, that he spent his time in wandering about the county in dissipation and idleness, leaving petitioner alone, neglected and without attention or companions, save that of her negroes.
(2.)' That during the time she was dangerously ill with erysipelas, and confined to her bed, and greatly in need of nursing and attention. While so confined, her husband utterly neglected her, refused to nurse, attend to or remain at home with her, but left her there in that condition, and that finally, for the purpose of receiving that attention her situation required, he carried her, at her request, to her father’s house; and while there he continued the same neglect and indifference to her that he pursued towards her while at home — visiting her father’s house only occasionally, and then remaining a few minutes, refusing to remain and be with her, though urged thereto by her parents.
(3.) That when she recovered her health, she returned to his house and her home, hoping, by her affection and devotion to him, to win h:s love and protection, but instead his neglect and indifference was continued in a more aggravated form. He refused to let her attend church, of which she was a member, saying that the minister was a damned hypocrite.
(4.) He refused to furnish her with common necessaries of wearing apparel, although possessed of an ample property.
(5.) He not only refused to punish one of his negroes, who had been grossly insolent and insubordinate to her in his absence, but approved of the conduct.
(6.) To wound her feelings and aggravate her condition, he made his will, giving to her therein only the sum of five dollars.
(7.) For the same purpose, he sent back to her father a family of negroes, consisting of a man, woman and four*774 children, that her father had sent home with them as a gift, refusing to let them stay on his place.
(8.) In the month of June or July, 1859, her husband refused to let herstay in his house any longer, and actually drove her off without means of any kind, being then in a state of pregnancy by him, houseless and helpless, to wander away wherever she might find a home, and in this condition she went back to her parents, where she has since remained.
(9.) Since her return to her father, she has been delivered of a female child. During her confinement, and consequent illness, her husband paid her no attention, made no provision for her support and maintenance, or that of their common offspring, nor has he, since he drove her from his house, contributed anything whatever for the support, clothing and maintaining either her or their child, but the whole has devolved upon her father.
Simultaneously with the filing of this libel, Mrs. Myrick filed a bill in equity against her husband to have alimony and counsel fees for the prosecution of the libel, allowed by the court; in which was also an application for the writ of ne exeat regno against her husband. ■
To this bill the husband demurred, on the ground that the specifications of acts of cruelty in the libel did not separately or together constitute cruelty in law sufficient to authorize a total divorce. Before the demurrer was heard, libellant with the leave of the court amended her libel with additional specifications of cruelty, that is: That her husband had charged her with adultery, and had charged in the presence of her mother that the child to which libellant had given birth was not his child, but was the offspring of an adulterous intercourse of libellant and another man. To this amendment the defendant then objected, or rather insisted'that the application for alimony and fees, and writ of ne exeat regno must depend entirely upon the sufficiency of the allegation in the libel, as it stood when the demurrer was filed, and could not be aided'
The demurrer having been overruled by the court, the defendant then excepted, and the case came before us for review. On the hearing two points are made.
(i.) That the court, in considering the demurrer, erred in allowing the amendment made after demurrer taken, to be read or relied on to support the application.
(2.) That the court should have sustained the demurrer, and dismissed the bill.
The amendment, under this broad, statutory right, was admissible, notwithstanding that the demurrer had been filed previously, and when the court came to pass upon the demurrer, it being still insisted upon, the amended matter stated in the pleadings was as much a part of the plaintiff’s case as any part of the record, and had necessarily to be considered by the court in passing upon the demurrer. Hence there was no error in this.
It is insisted by counsel for the plaintiff in error, in supr port of the objection to the sufficiency of the-specifications,- that to entitle a party to a divorce- on the ground of cruelty, “ there must- be actual violence attended with danger to- life, limb, or- health, or- there must be a reasonable apprehension of such violence.” If in' the grant of divorce on this-ground, the courts of Georgia were limited to such acts of cruelty only as were held to be sufficient for- that purpose by the ecclesiastical courts of- England,
It is true that there are cases to be found reported from those courts greatly modifying, if not overruling, this principle; but they are to be regarded as exceptions rather than the rule; for notwithstanding such scattering precedents, the courts have generally returned to the principles of that case, as the law of that court on the subject. But although we are inclined to assent to the soundness of this proposition as the rule by which the consistorial courts of England are controlled in the grant of divorces on the ground of cruelty, yet we cannot admit that the acts of cruelty enumerated in this libel will not bring the case within that rule. On the contrary, we think that if we were governed by the precedents and rules of that court in this proceeding, that the libellant would upon the pleadings be entitled to the divorce, as we shall hereafter show.
In application for divorces in Georgia on the ground of cruelty, the courts are not limited to such acts of cruelty only, as those held by the ecclesiastical courts to be suffi
Cruel treatment, or cruelty in the broad and unrestricted sense in which it is used in our statute, is any act intended to torment, vex, or afflict, or which actually afflicts or torments without necessity; or any act of inhumanity, wrong, oppression, or injustice; for these, or any of them,
The complainant is quite young — was scarcely a woman when she was taken by the defendant as a wife, and removed from the home of her parents, and before she is weaned from the memories and pleasures of childhood, the fond and devoted affection, the hovering, watchful, and devoted affection of her parents, she is left by her husband to brood in solitude over what she has left and lost. While he, utterly indifferent to her situation, her affection for him, her longing for his company, for which she has renounced and deserted all that was dear to her, spends his time away from her in idleness and dissipation. Not even a painful illness, in which she is confined to her bed, and when nursing and attention that she cannot give herself, and which was absolutely necessary for her safety and comfort, can recall him to her side; but his absence, neglect and indifference at a time when so keenly felt by her, is continued at his own house, and again at the house of her parents, where she has been removed to get that assistance which is denied to her at her own house by her husband. This indifference and neglect, as much as it distressed the wife, was not of itself sufficient to authorize a divorce, because as unmanly as such conduct was, it may be attributed, and probably is, to that thoughtlessness and want of care which (with regret be it said) so often marks the conduct of man to his dependent and most sensitive companion. And it is only mentioned here, that it may serve to characterize those positive acts specified in the libel which are relied on as evidence of cruelty.
Upon the recovery of the wife from this illness, and return home, he not only continued to leave her alone at home, but he refused to let her attend the church of which
The right of the husband to control his household, that is in their attendance upon church, to receive or refuse property given to him by his wife’s parents, or to send it away, if he chooses, to make such disposition of his property by will as he thinks proper, and to judge of the propriety of the punishment or conduct of his servants, this court cannot question, nor will we interfere therewith ; but where these and all other similar acts are done by the husband capriciously, for the purpose, and with a view to wound, vex, distress, and torture his wife, they are cruel; inhuman, and brutal. What did this defendant care about his wife’s attending church, except to deny her a pleasure and comfort, to tyrannize over and make her wretched ? Why limit her to a pair of shoes and two calico dresses per year, with his ample estate, except to show his indifference and malignity to her ? Why refuse to punish a negro for insubordination and insolence to his wife, ex
He takes her from the parental roof, a happy, innocent and loving woman, and after subjecting her to a life of suffering and distress, wounding and torturing her in every way that a malicious ingenuity can suggest, flings her from him in destitution as a thing of scorn and infamy, to be shunned and avoided by all that is good and virtuous; and when she files her application for relief, reciting his wrongs and injuries to her, without denying, says that the acts charged do not amount to cruelty — such cruelty as would entitle her to be relieved from the marriage. Could there be greater cruelty? Blows would have been positive kindness to such acts of wrong and injustice.
The charge of infidelity, under the aggravated circumstances as made in this case, in connection with the other acts of cruelty charged, was sufficient even in the ecclesiastical courts to authorize a divorce. Durant vs. Durant, 1 Hag. Ec., 768; Gale vs. Gale, 1 Robertson, 421. The wife’s person in such a case is not considered safe from the husband when influenced by the passion of jealousy.
The turning the wife out of doors, and driving her away, a houseless and penniless wanderer, in a state of pregnancy, is such an act of gross cruelty as would authorize a divorce in any court where cruelty is a ground. It is not only the greatest wrong, indignity and oppression that a brutal husband could inflict on his wife in her condition, it exposed her to bodily as well as mental suffering. Therefore had this court have held that the power of the courts
In holding this to be the sense of our statute, we do not wish to be understood as saying that every act of disagreement of husband and.wife, or amere austerity of temper, petulance of manner, or want of civil attention and accommod ation, rudeness of language, and even occassion al sallies of passion, shall be sufficient to authorize a divorce.
Marriage is a civil contract of the highest and most sol
In this state the question was no longer an open one at the time of this case, for it had been fully settled in Gholston vs. Gholston, 31 Ga., 634.
Judge Thomas, the presiding judge on the trial of that case, having charged the jury, “if the husband inflicts on the wife bodily pain or suffering, such as cowhiding or whipping,-this would be cruel treatment. But this, and such as this, is not all that constitutes cruel treatment. The commission of acts which outrage the feelings of modesty and decency, such as threatening to commit or attempting to comtiiit adultery, or cursing, abusing, or using insulting or opprobrious language, when done between husband and wife, whether by the husband to the wife or