118 Ga. 183 | Ga. | 1903
Lead Opinion
As will be seen by reference to the case of Ring v. Ring, 112 Ga. 854, the defendant in error in the present case at first brought a suit for divorce against Ms wife, Mrs. Mamie S. Ring, under the Civil Code, § 2427, on the ground of her habitual intoxication from the intemperate use of morphine and other opiates. The jury returned a verdict finding a total divorce for him, but the judgment of the lower court was reversed by this court, on the ground that “‘Intoxication,5 as used in section 2427 of the Civil Code, which provides for the granting of a divorce on the ground of ‘ habitual intoxication,5 means drunkenness produced by alcoholic liquors, and not the condition resulting from the excessive use of morphine.55 The plaintiff then dismissed his suit and brought the
We will now consider what were the rulings of the English ecclesiastical courts, on which the judgment in the Head case was based. In the leading case of Evans v. Evans, 4 Eng. Ecc. Rep. 310, decided in 1790, the court declined the task of laying down a direct definition of the term, but said: “ Tire causes must be grave and weighty, and such as show an absolute impossibility'that
• Apparently somewhat antagonistic to this doctrine are the cases of Gholston v. Gholston, 31 Ga. 625, decided at the November term,, 1860, of this court, and Myrick v. Myrick, 67 Ga. 771, which was decided at the January term, 1861, but the.opinion in which was,, for some unknown reason, withheld from publication for over twenty years. Both of these cases were suits brought by the wife against the husband on the ground of cruel treatment, and the specific acts of cruelty shown in both were amply sufficient to bring them within the strictest construction of the rule laid down by the ecclesiastical courts and the earlier decisions of this court. In neither of these cases was there any suggestion of reviewing the earlier cases of Head, Johns, and Buckholts, nor was there anything in the pleadings or the facts of either that called for such a review. A careful consideration of the Gholston case shows that what was said in the Myrick case to have been therein held was in reality not held, — an error which probably grew out of the misleading nature of the third headnote in that case. The headnote referred to is as follows: “The charge of the court below (incorporated into the opinion) correctly expounds the law of divorce, in sucha case, upon all the points made against it in the bill of exceptions.” In the opinion is set out a rather lengthy extract from the judge’s charge, much of which was then, and still is, sound, a portion of it, however, being in conflict with the previous rulings of this court. But the motion for new trial pointed out no error in this extract. While the rule as to assignments of error on charges in this court was not so stringent at that time as now, still the writer can not see, even under the rule as it then was, where a long extract from a charge-is excepted to, and most of it is good law, how a new trial could be granted on a small part of it that was not sound, — no exception being made to the bad alone. The court dealt with all the exceptions to various extracts of the charge in the following general man
In the case of Odom v. Odom, 36 Ga. 286, this court, speaking through Chief Justice Warner, evidently did not consider either the Gholston or the Myrick case binding as precedent; for in the opinion, on page 317, it is said; “In view of the various grades and conditions of mankind in society, it is extremely difficult to assert any definite rule,( applicable to all classes of society, as to what will constitute legal cruelty. Legal cruelty may be defined to be, such conduct on the part of the husband as will endanger the life, limb, or health of the wife, or create a reasonable apprehension of bodily hurt. What must be the extent of the injury, or what particular acts will create a reasonable apprehension of personal injury, will depend upon the circumstances of each case. The acts of cruelty must be such as to render cohabitation unsafe, or- are likely to be attended with injury to the person or to the health of the wife.” Citing Evans v. Evans, and Westmeath v. Westmeath, supra. The case cited was one in which the wife was the libellant, but under our law the doctrine announced is equally applicable in a case where the husband is the complaining party. The case of Glass v. Wynn, 76 Ga. 319, cites the Myrick case approvingly, but it holds nothing to the contrary of the Odom case, and the language used was not necessary to the ruling made. The case of Ray v. Ray, 106. Ga. 260, which was an alimony proceeding, also cites the eases of Myrick v. Myrick and Glass v. Wynn, as authority for the proposition that slanderous reports made by the husband against the wife, and which were brought to the wife’s attention, to the effect that she had been untrue to her marital vows, was such cruelty as would justify the wife in separating
We are not alone in the position that intention is a necessary ■element of the cruel treatment which the law recognizes as a ground for divorce. Massachusetts has a statute which allows a divorce on the ground of “ cruel and abusive treatment.” In the comparatively recent case of Wood v. Wood, 141 Mass. 495, Mr. Justice Holmes, who is now an Associate Justice of the United States Supreme Court, delivering the opinion, said: “ The single question reserved is whether the practice of masturbation by a husband in the presence of his wife, but without compelling her to remain present, which injures her health by its effect upon her feelings, is ‘cruel and abusive treatment’ within the” meaning of the law. “We will assume, although it is not found as a fact, that the libel-lee knew how his conduct worked upon his wife; and we fully .agree that, in general, foresight of a consequence of one’s act has
We have carefully examined all the cases cited in the brief of the able counsel for the defendant in error, which were decided by courts other than our own, and which lay down a different doctrine from that here announced; and we find that in many instances they
If the General Assembly sees fit to extend the provisions of the Georgia law on this subject, it has, of course, the power to do so. This court has neither the power nor the inclination. We can find no authority of law in this State for granting divorces to either party for any conduct, no matter how disastrous its consequences, which does not amount to intentional violence to the injured party, or create a reasonable apprehension of such violence. Our legislature has not seen fit to enact that any violation of the penal laws shall constitute cruel treatment, but has expressly provided that for none other than those -in which the defendant has been found guilty of a felony and sentenced to at least two years in the penitentiary shall a divorce be granted, except for the one misdemeanor of adultery. Both these, however, are made a distinct ground for divorce. The writer can conceive of nothing more distressing or harrowing to mind and body than to be united in marriage to an insane person ; yet no General Assembly in Georgia has so reflected on the humanity of our civilization as to insert in our law a’ provision that insanity occurring after the marriage shall be a ground for divorce. Under our marriage contract husbands and wives still take one an
Judgment reversed.
Concurrence Opinion
I concur in the reversal of the judgment, on the .ground that the habitual use of morphine by a wife is not, under the code, such cruel treatment as will authorize a divorce.