| Ark. | Dec 19, 1910
(after stating the facts). 1. “According to the matrimonial law of England,” says Lord Penzance, “nothing will justify a man in refusing to receive his wife except the commission of some distinct matrimonial offense, such as adultery or cruelty, upon which the court could found a decree of judicial separation.” Yeatman v. Yeatman, Law Rep. 1 P. & M. 489, 491; 1 Bish. Mar. Div. & Sep. § 1752. As observed by Mr. Bishop: “If this rule of decision was sound in England at a time when judicial separations were allowed only for adultery and cruelty, much more should it be received as such in this country where the causes of separation and divorce are more extended.” See note to § 1752, supra.
If the parties to a marriage contract were allowed to renounce the ties of wedlock, and to abandon the duties and obligations of the conjugal relation for any cause that seemed reasonable and just to them, or for any cause other than the legal cause for divorce, then indeed would such contract have but little binding force and the sanctity of the marital state would be destroyed. Suits for divorce, already far too numerous, would overwhelm the courts of chancery. I-Ience “the interests of society, the happiness of the parties, and the welfare of families demand the rule,” supra, that there shall be no abandonment of the matrimonial relation except for such causes as would constitute grounds for divorce. 1 Bishop, Mar. Div. & Sep. § 1753-
2. To justify appellant in his desertion of appellee, which he admits, it devolved upon him to prove that appellee had been guilty of adultery. The evidence he adduces for that purpose is entirely insufficient. Appellant admits that he had the most perfect confidence in his wife up to the time that his nephew told him that Johnson said “he had had a time with her.” This information alone, it appears, caused him to think that Johnson had been having intercourse with his wife. Whereupon he ordered Johnson to leave, and had a “row with her about it.” “She did not deny it,” he says; “but went off and spent two or three days and came back.” He “was not sure at that time whether Johnson’s statement was true or false.” He “was not fully satisfied of her guilt, and hence did not leave her, until December io, 1908, when he was told, by one who says he saw her, of her having intercourse with Johnson. We quite agree with the counsel for appellee in his analysis of the testimony and his conclusion that it is wholly unworthy of belief. It is unreasonable to believe, if Johnson had really been having intercourse with appellant’s wife, that he would have communicated such fact to the nephews of appellant. It is uni easonable to believe that Johnson and Mrs. Warfield were having sexual intercourse at the place, and especially in the posture, described by Emmet Warfield. If Johnson was in unholy liason with the wife of appellant, it was most unnatural and unnecessary, as counsel suggest, that they should have been “indulging in sexual felicities standing up in the corner of the kitchen close to the window face to face,” when there were two bed rooms close at hand, and when appellant was absent at Helena, and there was nothing in the surroundings to interrupt the freedom of their illicit commerce in its most “desirable and natural way.” Nor is it believable that witness Emmet Warfield could have approached, as he said he did, “walking with ordinary shoes over a wooden floor for a distance of 20 feet and not on tiptoe to catch any one,” without giving warning. And, if warned, it is utterly unreasonable to believe that human beings would have continued their indulgence, like brutes, oblivious to detection. On the contrary, if appellee and Johnson could have engaged in .the act in manner and form as described by the witness, then we have no doubt but that at the sound of the first footfall they summarily would have ended the performance and escaped observation.
Our conclusion therefore of the whole matter of fact is that the testimony of these nephews of appellant is a pure fabrication. For 18 years appellee as the wife of appellant not only faithfully performed her customary household duties, but in addition worked by appellant’s side in the field. By their combined industry and frugality they had amassed a small fortune. During all these years her demeanor as the consort of appellant was so exemplary that close neighbors could not detect any impropriety therein, and they unhesitatingly pronounced her a “good wife,” and say that she gave appellant “no cause for treating her as he did,” and that “they would have known it if she had given him such cause.”
Appellant himself concedes that he had no suspicion of infidelity on her part until he received the alleged information thereof through his nephews. Appellant accepted this accusation as true, forgetting that ofttimes “virtue itself ’scapes not calumnious strokes,” and immediately proceeded to “raise a row with her” whom he had plighted to love and cherish. For two years thereafter appellant continued to cohabit with appellee as his wife, and the record discovers no disloyalty on her part towards him. But, upon being told again that appellee had committed adultery two years previous, he forthwith abandons her. As we have endeavored to show, the story then told appellant was so shockingly unnatural in its details as on its face to bear the evidences of its falsehood. Appellant never even investigated to determine whether the accusation was true. His failure to do so, and his abandonment of appellee under such circumstances, was wholly unjustifiable, and therefore wilful. His conduct in so doing can only be explained upon the theory that he was so completely dominated by the “green-eyed monster” as to be incapable of exercising his reasoning faculties. To conclude that appellee was unfaithful to her marriage vow from the testimony in this record would do her a gross injustice. But, even if there were room for some doubt upon this proposition, we should still regard the judgment of the learned chancellor as strongty persuasive, and feel it our duty to affirm it.
3. The present case is that of a divorce a vinculo matrimonii. The marital bonds are completely severed by the decree. The husband was living when the decree was entered. Hence no question of dower intervenes here, and Johnson v. Bates, 82 Ark. 284" date_filed="1907-04-08" court="Ark." case_name="Johnson v. Bates">82 Ark. 284, has no application. Appellee takes the property awarded her in pursuance of the very terms of the statute. Sec. 2684, Kirby’s Digest.
The judgment is affirmed.