Gordon v. Gordon

48 Pa. 226, 1865 Pa. LEXIS 6

• Court: Supreme Court of Pennsylvania
• Decided: January 2, 1865
• Status: Published

Opinion

The opinion of the court was delivered, by

Strong, J.

— This was a libel for divorce, “a mensa et thoro,” in which the libellant set out two causes for a separation. They were, that the defendant, her husband, had “ turned her out of doors,” and “that he had offered such indignities to her person as to render her condition intolerable and life burdensome, and thereby force her to withdraw from his house and family.” The answer of the defendant denied these allegations, and also pleaded in avoidance, “that the libellant, by her loose and immoral conduct and her ungovernable temper, causing her to commit acts of violence on the person of the defendant, destroyed the peace and comfort of his family, and rendered his condition intolerable and life burdensome.” To the answer there was a general replication traversing all the averments of the defendant. The issues thus formed were submitted to a jury, and the errors assigned relate to the charge of the court given on the trial.

Before proceeding to a consideration of the several exceptions taken, it may be observed that the main contest before the jury, if not the only one, had reference to that averment in the libel which asserted that the defendant had turned the libellant out of doors, either actually or constructively, by refusing to permit her to remain in his house when she offered to remain with a purpose to perform in good faith her conjugal duties. That he had refused to permit her thus to remain was distinctly proved by several witnesses, and the verdict of the jury has established this averment in the libel. Whether the conduct of the libellant had been such as to justify the act of the defendant, was then the only remaining question. Upon this the court was requested to instruct the jury, that if the facts testified to by several witnesses named, as to her obscene and abusive language,. the immoral conduct, the intemperate habits, and the violent acts of Mrs. Gordon, and her treatment of her husband, were proved to the satisfaction of the jury, they were such as would entitle David Gordon, the defendant, to a divorce, arid therefore constituted a legal justification of his refusal to permit her to return to his house and family. Such instruction the court refused to give, holding that the cause which will justify a husband in turning his wife out of doors is such cause only as would entitle him to a divorce if he were seeking it, and that the evidence of the conduct of the libellant did not exhibit a case which, under any Act of Assembly, is a sufficient cause for decreeing a divorce at the suit of a husband. To this the first three errors are assigned, and they are so intimately connected with each other that they may best be considered as one. That the rule was correctly given by which the alleged justification of the defendant was to be measured, may be seen by reference to Eschback v. Eschback, 11 Harris 343, and Grove v. Grove, 1 Wright 447. Of'this indeed there is no complaint. But it is insisted that the conduct of the libellant, as exhibited by the evidence, had been such before she was ejected from the defendant’s house, as to amount to one of the causes for which a divorce is allowed to a husband by the Act of Assembly. That it was bad, shamelessly bad, must be conceded. That it was such as to call for the abhorrence of every right-minded man, appears plainly from the evidence. But it is not all bad conduct of a wife which entitles a husband to a divorce. Causes sufficient for that are such only as are defined in the Acts of Assembly. Under our statutes a distinction has always been made between the causes for a divorce at the suit of a wife, and those which justify a divorce at the suit of a husband. The Act of 1815 made no provision for a divorce by either party from bed and board. It authorized only a dissolution of the marriage bond, and of causes occurring subsequently to the marriage there were only tw'o which were sufficient to entitle the husband to a divorce. They were the adultery of the wife and her wilful and malicious desertion of her husband, and her absence from his habitation without reasonable cause for two years. Though under that act the wife might claim a divorce for her husband’s cruel and barbarous treatment endangering her life, or for such indignities offered by him to her person as to render her condition intolerable and life burdensome, and thereby force her to withdraw from his house and family, no such privilege was granted to the husband. It was doubtless not supposed that he was in equal danger of cruel and barbarous treatment endangering his life, or of indignities offered to his person such as to render his condition intolerable and life burdensome, and force him to withdraw from his family. He was thought able to protect himself. Hence no provision was made for such a case. This act was followed by the Act of 1817, which authorized a divorce from bed and board, with alimony, for certain causes, at the suit of the wife, but it made no alteration in the rights of the- husband. It added no new cause to those which had previously been declared sufficient grounds for decreeing a divorce at his suit. Provision was made for a partial divorce at the suit of the wife for four distinct causes. They were, malicious abandonment by the husband of his family, turning the wife out of doors, endangering her life by cruel and barbarous treatment, and offering such indignities to her person as to render her condition intolerable or life burdensome, and thereby force her to withdraw from his house and family. The Acts of Assembly authorizing divorces remained in this condition substantially until 1854. In the intervening time some enactments were made to remedy mischiefs supposed to exist, but none of them gave a husband a right to sue for a divorce from bed and board, or from the bonds of matrimony, for any other cause than such as had been declared sufficient for him by the Act of 1815. In Dorsey v. Dorsey, 7 Watts 349, it was decided by this court that the legislature had not conferred upon Courts of Common Pleas jurisdiction of a cause of divorce alleged to have been committed by the husband whilst his domicil was in another state, and that the law of the actual domicil at the time and place of the injury is the rule in cases of divorce for everything hut the original obligation of marriage. To meet in part this decision, the Act of 27th of February 1847 was passed, by which an attempt was made to validate divorces granted for adultery, if the offence was committed in this Commonwealth, and if the libellant had resided therein one year previous to the application for the divorce, although at the time of the commission of the offence the libellant and respondent may have been residents- of another state. This was followed by the Act of April 26th 1850, which empowered the Courts of Common Pleas to entertain jurisdiction of all cases of divorce for the cause of desertion, notwithstanding the parties were at the time of the desertion domiciled in any other state. It did not reach a case where the parties were domiciled in any foreign country not one of the United States: Bishop v. Bishop, 6 Casey 412. By the Act of May 8th 1854, the jurisdiction of the courts was enlarged. They were authorized to grant divorces for other causes than those specified in the Acts of 1815 and 1817. These new causes were fraud, force, or coercion in the procurement of the marriage, if it had not been subsequently confirmed by the act of the injured party, and conviction of felony and sentence to either a county or a state prison, where the application is made by the husband or wife of the party convicted. Both these causes are equally available where the divorce is sought by the husband as ■when it is sought by the -wife. The act also extended to the husband a right to a divorce where the wife shall have by cruel and barbarous treatment rendered the condition of her husband intolerable or life burdensome, but required that he should pay alimony whenever a divorce for such a cause should be decreed at his instance. This does not give a husband a right to a divorce for all the causes for which a wife was entitled under prior acts. It does not undertake to make the rights of the husband and wife equally extensive. Cruel and barbarous treatment is added to the causes for which he is entitled to a divorce, but personal indignities, a cause which former acts had carefully distinguished from cruel treatment, is not added.- True, the language of the act differs slightly from the words of the Acts of 1815 and 1817, but so slightly that it is evident the legislature had only cruel and barbarous treatment in view. There was, as has been intimated, a reason why protection against personal indignities should be extended to the weaker and more sensitive party, and at the same time be denied to the husband. The Act of March 9th 1855 gave to neither of the parties any new cause of divorce. Its sole purpose, like that of the Act of 1850, was to extend the jurisdiction of the courts. The first of these acts had only extended jurisdiction over parties domiciled in another state where the offence was committed, to cases of divorce from the bonds of matrimony for the causes of desertion and adultery. It did not confer jurisdiction in cases of such domicil of the parties, in any libel for a divorce, where the injury complained of was either cruel and barbarous treatment or personal indignities. To remedy this omission was the design of the Act of 1855. Neither of these two acts undertake to define any cause as sufficient grounds for a divorce, though they both refer in general terms to the causes which had previously been defined. It would be giving to them a meaning never intended were we to hold that they had any other object in view than the enlargement of the jurisdiction of the courts over parties. It might as well be ruled that the Act of 1850 authorized divorces for desertion, without continued absence, as that the Act of 1855 created a new and distinctive cause.

In the light of this legislation it is obvious the court below was right in refusing to affirm the defendant’s point, and in holding that he could justify turning the defendant out of doors only by showing that by cruel and' barbarous treatment she had rendered his condition intolerable and life burdensome ; or in the language of the Acts of 1815 and 1817, “ endangering his life in ruling that his evidence did not come up to that standard, and in putting the case to the jury on the single question, whether there had been a turning out of doors. Indeed, in strictness, to enable him to make use of any justification he should have pleaded it, for it was matter in evidence. But his answer made no averment of the libellant’s cruel and barbarous treatment. At most it averred personal indignities, which, however censurable and provoking, could not be enough for justification. And his evidence did not excel his averments. It proved insults and .personal indignities of the grossest character, hard to be endured, but they are not the cruel and barbarous treatment, which either endangers life or renders the condition intolerable or life burdensome. To hold that they are, would be to confound causes of divorce which the legislature has separated, and which have always been distinguished in judicial decisions. Conceding now that the defendant could have justified turning his wife out of doors, in this proceeding of hers for a divorce from bed and board and for alimony (which for the purposes of this case may be conceded), by showing cruel and barbarous treatment inflicted by her upon him, he must still have shown such cruel and barbarous treatment as under the Acts of Assembly would have authorized the court to grant him a divorce had he applied for it. We will not go into the question whi-ch has given the English courts and those of other states so much trouble, what is the cruelty that is ground for a separation. Perhaps the language of our Act of 1815 solves the difficulty by describing it as such treatment as endangers life. However that may be, we are clearly of opinion that the cruel and barbarous treatment spoken of by the Act of 1854, is the same as that described in the Acts of 1815 and 1817, notwithstanding the slight difference of language. If not, then the husband may obtain a divorce for a less degree of cruelty than would suffice to entitle the wife to a divorce. It is hard to believe that the legislature intended any distinction in favour of the husband. In Butler v. Butler, 1 Pars. Eq. Cas. 329, Judge King defined “cruelty” to the wife within our statute of 1815, “as actual personal violence or the reasonable apprehension of it, or such a course of treatment as endangers life or health and renders cohabitation unsafe.” This definition accords with the present doctrine of the English ecclesiastical courts. It gives the extremest possible liberal construction to our Act of Assembly. Tried by this rule, the defendant gave no evidence of cruel and barbarous treatment, such as could justify his “turning the libellant out of doors;” and. therefore we are constrained to affirm the judgment, though we do it reluctantly.

The decree of the Court of Common Pleas is affirmed.