175 Ind. 412 | Ind. | 1911
Appellee sued appellant for divorce and alimony. The complaint charged the husband with cruel and inhuman treatment, among other things alleging that he struck and beat plaintiff, and falsely and maliciously charged that she was an unchaste woman. There was an answer of general denial, with a trial and judgment in favor of appellee, awarding divorce and decreeing her alimony in the sum of $7,866, and the further sum of $500 for her attorneys’ fees. From this judgment appellant appeals. ITis motion for a new trial, overruled by the court, assigns twenty-one reasons therefor.
About a month after the separation, and three months before appellee filed her complaint for divorce, a number of cards were placed in conspicuous places on the premises, where they would likely be seen by appellee and her children, especially the married daughter, and which were seen by both mother and daughter. Two eggs were placed in a hen’s nest, from which appellee was accustomed to gather eggs. On one of these eggs were some written words, and a picture so obscene that we do not deem it necessary nor desirable further to describe it. On the cards appeared written words unnecessary to repeat here. The writing on the cards, and the picture, charged appellee, in a most offensive way, with unchastity. The writing on the cards and eggs, and the making of the picture on the egg, were the deeds of appellant. These cards and eggs were placed by him at different times in places where he believed they would be seen by his wife, and where they probably would be seen by some of their children. He admits the base conduct, and says that at the time he had no ground to suspect his wife’s virtue, and did not, in fact, suspect it, but he did the acts, as he says, because he was angry, and
Counsel for appellant concede that unfounded and malicious charges of adultery by a husband against a wife ordinarily justify a decree of divorce for cruel and inhuman treatment, but that when such charges were made after separation, and after like charges had been made by the wife against the husband, and were otherwise provoked by the wife, a decree is not justified. It is true, these charges were made about a month after the separation. However, this suit was not instituted for about three months after the charges were made, and had it not been for the cruel accusations there might have been a reconciliation as before, when other separations occurred. Her charges against him were made twenty-five years before, and, under the circumstances, she might have been excused by his own indiscreet conduct. Beach v. Beach (1896), 4 Okla. 359.
“Cruel and inhuman treatment,” one of the statutory causes for divorce in Indiana, is, like negligence, a relative term, and of necessity must depend upon the circumstances of each particular case. Bailey v. Bailey (1867), 97 Mass. 373. Among half civilized and brutal people, blows might be exchanged between married couples, who, in the main, are happy and have no desire to part. Nor should a false and malicious charge of adultery be held, in all cases, such cruel and inhuman treatment as would justify divorce. In all cases the character and condition of the parties and their surroundings should be considered.
Judgment affirmed.