Freerking v. Freerking

19 Iowa 34

• Court: Supreme Court of Iowa
• Decided: June 15, 1865
• Status: Published

Opinion

Dillon, J.

1.divobce: inhuman treatment. By,our statute (Rev. § 2533), the wife is entitled to a divorce when the husband “ is guilty w 0 0f inhuman treatment as to endanger her life.”

The meaning and true construction of this provision were very fully considered in the case of Beebe v. Beebe, 10 Iowa, 133; recognized and followed in Caruthers v. Caruthers, 13 Iowa, 266, to which we refer.

The statute requires two ingredients to authorize the innocent party to claim a divorce on this ground.

1st. The treatment of the opposite party must be inhuman, and

2d. Such as to endanger life.

2._ pleadings. In framing a petition for a divorce it is the duty of the plaintiffs to state the facts, the specific facts of inhuman treatment, which are relied on as the ground of ^ re|jef praye¿¡. The showing, Or from which the court can see, that the life would be endangered by a continuance of the cohabitation, should be fully set forth. It is not sufficient to allege generally, that the defendant is guilty of such inhuman treatment as to endanger her life. Pinkney v. Pinkney, 4 G. Greene, 324.

In considering the sufficiency of the present petition, we must lay out of view all general allegations and statements of this character, and look only at the specific facts which are of a nature to be established by evidence, and when established, are of such a character as to induce a reason* able apprehension of danger to life.

Thus regarding the petition, we are all of the opinion that the demurrer thereto ought to have been sustained.

It is nowhere alleged that the defendant ever did the plaintiff bodily harm, or even threatened to do so. The nearest approach to such an allegation, is the one that the defendant declared that he would pay any man $10 who would shoot the plaintiff. This cannot seriously be regarded as a threat, though such language is, of course, highly reprehensible.

It is alleged that he vilified and abused the plaintiff both before and after the separation, and also abused and maltreated her children; that she was obliged to furnish food, &e.

Admitting all this to be true, and conceding that if true, the husband’s conduct is intensely blameworthy; still, it fails to satisfy us that this treatment was such as “ to endanger the life ” of the plaintiff. It is not alleged that her health was impaired or injured.

The case is distinguishable from the two prior cases in this State, above cited, in both of which there was cruel and inhuman conduct, and actual bodily harm threatened. And these two cases, particularly the last one, have gone as far as the most literal construction of the statute would justify.

The defendant did not except to the ruling of the court, allowing the plaintiff a sum of money as temporary alimony, and its ruling in this respect must be affirmed.

The judgment of the District Court, on the demurrer, is reversed, and the cause remanded, with leave to the plaintiff to- make the petition more specific, and otherwise to amend the same if she is so advised.

Reversed.