90 W. Va. 787 | W. Va. | 1922
By bill and cross-bill answer each of the parties is seeking a divorce from the other; the plaintiff on the grounds, (1) of alleged cruel and inhuman treatment of the defendant toward him, (2) of adultery alleged against defendant; while the grounds upon which defendant predicates her prayer for affirmative relief against the plaintiff are, (1) desertion, (2) cruel and inhuman treatment, (3) the counter charge of adultery by him. Bach of the parties in their respective
The defendant denies in her answer all charges of cruel and inhuman treatment, and all acts of adultery charged against her. Plaintiff filed no answer to the cross-bill of defendant. The case was tried by the court upon the pleadings and the documentary and oral evidence of the witnesses adduced by both parties, resulting in the decree complained of by both, denying to them the relief prayed for, or any relief, and dismissing the bill and cross-bill with costs to the defendant against the plaintiff.
The only specific act of cruel and inhuman treatment alleged and sought to be proven by plaintiff consisted of a warrant of arrest procured by defendant January 15, 1920, upon a charge of lunacy against him, which upon investigation and consideration by the lunacy commission of Harrison County was sustained; and that subsequently, upon a writ of habeas corpus sued out by him against defendant Henry M. Schutte, custodian, discharge from custody was denied him by the circuit court; but which judgment was 'reversed here upon writ of error on September 20,' 1920, and the plaintiff discharged and restored to his liberty. 86 W. Va. 701. The only other acts of bad treatment consisted of supposed alleged expressions of disrespect for plaintiff-, lack of love for him and love for another, developing into acts of notorious conduct pointing to acts of adultery on the part of defendant with the corespondent, which are alleged to have become unbearable by plaintiff.
The charge of adultery is predicated on various acts of •misconduct of defendant with lone Samms within 'three years prior to the institution of the suit. No specific acts are set out or pleaded in the bill. , .
Defendant in her answer denies the cruel and inhuman treatment, either - in connection with said lunacy charge or. in any other manner. The facts relating to the accusation of lunacy sufficiently appear perhaps from the record and opinion in the proceeding already referred to. The record and the evidence adduced before the, court in the present case clearly show that the former proceedings were begun
We have distinctly held that disavowals of love, expressions of hatred and the like, while the marital relation continues, do not constitute cruel and inhuman treatment of the husband by the wife. Huff v. Huff, 73 W. Va. 330; Wills v. Wills, 74 W. Va. 709. By the Code the false charges of prostitution by the husband against his wife amounts to cruelty on his part.
On the only other accusation, that of adultery with said Samms, we are not justified, we think, in reversing the decree below on this ground. Outside of the numerous instances testified to by witnesses, where defendant and Samms were seen riding together in an automobile of the one or the
Of course, if the facts are as sworn to by plaintiff’s witnesses relating to the presence of Mrs. Schutte and Samms in the cemeteries, and in the woods on the opposite side of the field as sworn to by the motorman, they were guilty of very unbecoming conduct. But no witness swears to any act of adultery on their part. The court below evidently concluded that the fact of adultery was not established. Is the evidence such as to justify us in reversing the decree? We do not think it is. The burden is upon the plaintiff in this class of cases, as in all others, to make out a clear case of
But should the lower court have awarded defendant a divorce a vinculo or a mensa et thoro against plaintiff ? Having failed to make out a clear case of adultery against hex*, the statute, if his charges amounted to that of prostitution, would give her a divorce on the ground of cruel and inhuman treatment. But the charge is not that of prostitution, but of adultery. To be a prostitute means for a woman to give herself up to indiscriminate lewdness, to become a base hireling. Adultery is a crime of less gravity at common law and under the statute. Ex parte Richards, 53 W. Va. 555. And so the statute does not in terms, nor likely by implication, include adultery in the word “prostitution,” a question, however, not necessary nor intended to be decided. Plaintiff may have felt justified in making the charge in his bill, in view of the many reports testified to by the witnesses. There is considerable evidence, however, tending to show
Affirmed.