57 Neb. 102 | Neb. | 1898
Charles [W. C.] Griffith, from 1888 until the trial of this case in the district court, in 1896, was a married man, fifty-three years old, and a citizen and resident of the city of Lincoln, owning a residence therein in which he resided with his family. Griffith seems to have been a farmer and stock-raiser by occupation; at least during this time he owned two large farms of about 800 acres each, — one of them situate about thirteen miles from the city of Lincoln, near the village of Raymond; the other located about four and one-lialf miles north of the city of Lincoln, and called' “Arbor,” because a post office by that name was established at the house on this farm. On this latter farm were extensive buildings used in connection with the farming operations and the growing and handling of stock conducted thereon. In the management and conduct of these farms Griffith seems to-have adopted in the main a system of carrying them on by means of hired help instead of leasing them. He was
In December, 1890, Thomas Walton became ac
Walton, in his answer to this petition, admitted publishing the notice forbidding persons to give his wife credit, alleging as a reason therefor that she had threatened to pledge his credit, notwithstanding he had provided her with all the necessaries of life; admitted that he had forbidden the sister and brother of his wife and Griffith to visit her at their home, and alleged as a reason therefor that they were maliciously intermeddling in the affairs of himself and wife, and attempting to alienate her affections from him; admitted that after September 13 he had refused to eat at the same table with his wife, and alleged as a reason for this conduct that he feared his wife intended to poison him. He denied generally the other charges against him, and interposed as an affirmative defense that his wife had conducted herself improperly toward him; that she became cross, morose, and abusive; called him “an old fool;” said she was ashamed of him; said she was ashamed to be seen in his society; called him “old stinginess;” said that she married him for his money; said that she had been unfaithful to him, and criminally intimate with other men, and would be so again; that on May 27, 1S95, and at divers dates after that time, she had committed adultery with
The district court found generally in favor of the wife and against the husband, and specially found that the husband had been guilty of extreme cruelty toward the wife; that on August 12, 1895, he had applied to her vile and opprobrious epithets, and accused her of being guilty of adultery; that on July 20, 1895, he had accused her, and said to her that she had been guilty of adultery with Griffith, and at said time applied to her vile and opprobrious names; that on September 8, 1895, he had charged her with having poisoned and having intended to poison him; that on September 18, Í895, he had struck and beat her, and on September 21, 1895, he had seized her and choked her; that all these acts of cruelty were without, cause or provocation, and that on September 21, 1895, the wife’s health, by reason of the cruelty practiced upon her by her husband, was impaired, and that on said date, without any fault on her part, she was compelled to and did abandon his home. The court further specially found that the accusations and charges of adultery made by the husband against the wife were without provocation in truth or in fact, and were made by the husband for the purpose of willfully and cruelly treating the wife. The court further specially found that each and every of the charges of adultery made against the wife by the husband were acts of extreme cruelty and were each and every one of them false and willfully and intentionally made by-tlie husband; that the wife had at all times conducted herself toward her husband as a chaste and dutiful wife. The court further found that the husband was possessed of property of the value of $24,000 and entered a.decree giving the wife a divorce as prayed for in her
1. The bill of exceptions in this case consists of more than sixteen hundred pages, and we shall not therefore attempt even a resume of the evidence, but content ourselves with saying that it amply sustains each and every of the general and special findings made by the district court.
2. A contention of the appellant is that the evidence establishes that his misconduct and cruelty toward his wife were provoked by her misconduct and impropriety, and he invokes the principle that one is not entitled in equity to be relieved from the consequences of an act which his own wrongful conduct provoked. The alleged impropriety or misconduct of which the plaintiff alleges his wife was guilty consists in several things. He claims that soon after their marriage his wife became cross and morose, called him an old fool, said she was ashamed of him, said that she married him for his money, told him that she had been unfaithful to him, that she threatened him with a butcher-knife, and pushed him outdoors. The evidence fails to establish that the wife ever threatened her husband with a butcher-knife, or pushed him outdoors, or that she ever told him that she had been unfaithful to him. The evidence does show that some time after her marriage she became morose and irritable, but the record justifies the conclusion that the appellant's conduct was responsible for such condition of his wife. She did at one time call him an old fool, but under what circumstances? In one of his abusive tirades, — in which he seems to have frequently indulged, — he so far forgot himself as to call her a whore, and she responded, “You are an old fool.” The record sustains the wife’s judgment. She did say to him once that she was ashamed to go out with him; but it appears that the appellant was an uncouth man in his habits and dress, and, among other things, wore trousers entirely too large for him,
We do not understand that a wife at all times and under all circumstances owes implicit obedience to the husband. We do not understand that a wife’s contract of marriage is an indenture of servitude; and, in view of the facts in this record, while the wife’s visits to Arbor may not have been prudent, and may have tended in some degree to intensify the jealousy and the cruel conduct of the appellant, still we do not think that these visits caused or provoked the cruel treatment awarded her by her husband; nor do we think that by making these visits the wife violated her marriage contract. Not one of these visits was maliciously made; not one of them was made for the purpose of seeing Griffith. At Arbor lived the sister of this wife. The two had grown up together as playmates and schoolmates, and as members of the same family. They were a thousand miles from father and mother, and it was the promptings of natural affection that induced this wife to go to Arbor to see her sister, and at one of the visits complained of the sister was sick, and the wife visited her because thereof. But assuming that the wife in calling on her neighbors, attending church and social gatherings, and visiting her sister was guilty of disobedience, the punishment inflicted upon her therefor was out of all proportion to the offense. No
We call these conclusions of the appellant delusions, because the record will justify no other nomenclature. Neither of them was a rational deduction from any fact or circumstance, or all the facts and circumstances, disclosed by this-record. The theory of the appellant that his ■ wife Avas an adulteress Avas and is a delusion. Whether produced by jealousy, a diseased mind, or a degenerate imagination, still it was a delusion. There is not in this record any evidence, express or inferential, that this Avifo was at any time or place guilty .of -any. improper conduct with any man. Her reputation from the time she Avas a schoolgirl in Pennsylvania until the date of this trial in the district court was laid bare before the judge who tried this case. The men and women avIio had knoAvn her when a child, Avhen a young lady in Pennsylvania, the men and women who were acquainted with her after she reached Nebraska, the members of her church, the people who met her at social gatherings, the people who met her
Into the trial of this case the appellant introduced another theory, which is skillfully interwoven into the brief filed here. It is this: that this wife, from the time she came to Nebraska, was Griffith’s mistress; that he caused her to come to this state for that purpose; that after her sister Minnie began living at Arbor, Griffith desired to substitute her as his mistress instead of the appellee, and for the purpose of effecting this exchange Griffith, the appellee, and her sister — the brother perhaps aiding, abetting, and consenting thereto — entered into a conspiracy to bring about a marriage between the appellant and the appellee; and having accomplished this, they further conspired to break up the marriage and endow the appellee with appellant’s property. We have called this a theory, not a delusion; and a theory we think it is, as malicio ns as dangerous. It was and is merely an insinuation, both cruel and cowardly. It assailed not only the reputation of appellee and Griffith, but it struck at the reputation of the sister, and the peace and happiness of Griffith’s
In support of the contention that the wife’s disobedience of her husband provoked and thereby justified the' cruelty practiced by him toward her, counsel for appellant cite the following cases: Fulton v. Fulton, 36 Miss. 517; Taylor v. Taylor, 26 N. Y. Supp. 246, 74 Hun 639; Erans v. Erans, 82 Ia. 462, 48 N. W. Rep. 809; Nullmeyer v. Nullmeyer, 49 Ill. App. 573; Blurock v. Blurock, 30 Pac. Rep. [Wash.] 637; Coles v. Coles, 32 N. J. Eq. 547. In these cases, or most of them, it was held that the wife, by her improper conduct, had caused the husband’s cruelty made the basis of her petition for a divorce, and that therefore she was not entitled to relief. A review of two of these cases must suffice, as they are representatives of all.
In Erans v. Erans, 48 N. W. Rep. [Ia.] 809, the wife sought a divorce from her husband because of his “inhuman treatment.” It appeared that he had falsely accused her of unchastity. No.physical violence was shown, It appears that the wife had permitted other men than her husband to scuffle with her, to kiss her, to put their arms around her, and to take other liberties with her of a like nature; that the husband knew this, and it aroused his jealousy and made him angry. The district court found that this conduct of the wife caused and provoked the indecent language, and the false accusations of uncliastity made by the husband against the wife, and denied her g divorce, and its judgment was affirmed,
But the facts in the two cases noticed, and in the other cases cited by the appellant, are very different from the, facts of the case at bar. Here the record discloses no improper intimacy on the part of the wife with other men, her husband knowing which made him jealous and caused him to assail his wife with the lewd and virulent epithets and charges which he did. Theie is no pretense here that the husband beat and choked the wife because of a physical attack made on him by her. While it is true that when it appears that the husband’s cruelty is the natural and probable consequence of the misconduct of the wife, she cannot make such cruelty the basis of a divorce, still this is only a general rule, and if it appears that the husband’s misconduct was wholly unjustified by the wife’s provocation, and his cruelty out of proportion to her offense, she may be granted a divorce because of his cruelty. (1 Bishop, Marriage & Divorce secs. 1641, 1644.)
The supreme court of Minnesota, in Segelbaum v. Segelbaum, 39 N. W. Rep. [Minn.] 492, states the rule thus: “Provocation which is disproportionate to the wrongs and injuries suffered is insufficient to sustain a plea of justification.”
The supreme court of Texas, in Jones v. Jones, 60 Tex. 457, discussing the question under consideration, said: “Recrimination is a valid defense when the recriminatory fact is of a like character’ with the act of the defendant
Wheeler v. Wheeler, 53 Ia. 511, is strikingly in point here. The court said: “The excúse offered by the defendant is that he disliked to have his wife associate with the Lanes. * * * [Lane is the man accused of adultery with his, Wheeler’s, wife.] There is no evidence to show that the defendant had any grounds for his fancied or real opposition to the Lanes. But admitting that in such a matter he must judge for himself, this, gave him no right to call his wife vile names and abuse her and accuse her of want of chastity. It is said that because the plaintiff persisted in associating with the Lanes when the defendant objected to her so doing, she by her own conduct brought about the difficulty of which she now complains. * * * We are unable to find from the evidence that the foregoing proposition of fact is true. * * A. man who persistently calls his wife a ‘whore’ * * * is fast preparing himself to resort to harsher measures to degrade her. Conceding it to be true that plaintiff may have been indiscreet, there is no evidence tending to show that she was unchaste. She therefore must be regarded as a virtuous woman and imbued with the feelings of such.”
Whether a wife’s disobedience of her husband, or her misconduct, or impropriety, was the cause or provocation of the husband’s cruelty towards her, is a question of ■fact; and in this case the district court has found that ■the cruelty practiced toward her by her husband was not induced by the wife’s disobedience or impropriety, and the éyidenpe abundantly sustains til© toeing- Whether
3. Another contention of the appellant is that, considering the situation and relation of the parties, the husband’s misconduct and cruelty toward his wife was not extreme cruelty within the meaning of section 7, chapter 25, Compiled Statutes, which provides: “A divorce from the bonds of matrimony * * * may be decreed for the cause of extreme cruelty, whether practiced by using personal violence, or any other means.” The “situation of the parties” was a young wife thirty-five years of age; a husband fifty-seven, unreasonably, insanely jealous, jealous without cause or provocation, and when in a rage induced and caused by his unfortunate jealous disposition, he falsely, and without reasonable cause therefor, charges this wife with unchastity, accuses her on the public streets with being criminally intimate with other men, calls her the most vile, opprobrious, and degrading names known to the English language, and crowns the cruel treatment by beating and choking her. We think that, “considering the situation and relation of these parties,” the husband’s conduct was not only cruelty, but extreme cruelty within the meaning of our statute. In support of his contention appellant’s counsel cite us to the following cases: Beckley v. Beckley, 31 Pac. Rep. [Ore.] 470; Reed v. Reed, 4 Nev. 396; Shaw v. Shaw, 17 Conn. 189; Coulthard v. Coulthard, 60 N. W. Rep. [Ia.] 213; Felton v. Felton, 62 N. W. Rep. [Ia.] 677 ; Boon v.
We have already referred to Reed v. Reed. But in that case, while the court denied the wife a divorce because the evidence established that she had provoked the cruelty of which she complained, still the court said: “There may be extreme cruelty without the slightest violence. The happiness of a life may be destroyed by a course of conduct which could furnish no ground for apprehending bodily harm or injury. * * * It is evident that much must be left to the discretion of the court and jury in determining whether certain acts, or course of conduct, amount to extreme cruelty, for it is manifest from the nature of things that acts which would be extreme cruelty under certain circumstances would not be so under others; and so, too, a course of conduct toward one person might be deemed extreme cruelty which towards another would not be so considered by any one.”
In the case of Shaw v. Shaw, supra, the husband had vilely abused the wife, had charged.her with adultery, end, against her wishes and remonstrances, had unreasonably exercised his authority in regard to her attending church and visiting her relatives and friends, and persisted in endangering her life by excessive intercourse, and the court said: “If this was cruelty, it was such cruelty as ‘can be borne.’ The unfortunate victim is to be pitied, but the law furnishes no remedy.” The case is an authority for the contention that the conduct of the husband in this case toward his wife was not extreme cruelty. But Ave confidently say that no such a rule of laAV as announced by the court in the Shaw Gase exists Avest of the Alleghany mountains.
Perhaps it may be also said that Van Glahn v. Van Glahn, supra, also sustains counsel’s contention. But the other cases are not authority for the proposition i-n support of Avliicli they are cited, the facts in this case apd our statute considered,
In Graft v. Graft, 76 Ind. 136, the court said: “A husband could hardly, by any other means, cause a sensitive wife more mental pain, torment, vexation, affliction, grief, and misery than to falsely charge her with the crime of adultery, and slanderously report the same around among her neighbors; and in doing so he would certainly be guilty of great unkindness, and want of tenderness toward her. A greater violation of the marital vow to protect and defend the reputation, as well as the person, of a wife the husband could not commit than to wantonly traduce and vilify her character.”
In Smith v. Smith, 40 N. J. Eq. 566, the court'said: “A charge of incest made by a husband against his wife, persisted in without cause, attended with slight acts of violence, jealous watchings, suspicious conduct, and reasonable apprehension of bodily harm is good ground for judicial separation by a divorce from bed and board. It is not a good defense to such complaint that the husband appears to be under an insane delusion where there is not general insanity.”
4. A final contention of the appellant is that the alimony awarded the wife in this case by the district court is excessive. We do not think it is. The only doubt in our minds with reference to the correctness of the decree as to alimony is whether it should not have been made
Affirmed.