Johns v. Johns

57 Miss. 530

• Court: Mississippi Supreme Court
• Decided: October 15, 1879
• Status: Published

Opinion

Campbell, J.,

delivered the opinion of the court.

“ Habitual, cruel and inhuman treatment, marked by personal violence,” is cause for a divorce from the bond of matrimony. Code 1871, § 1767. The clause, “ marked by personal violence,” defines the kind or degree of treatment which is cause for a divorce. Cruel and inhuman treatment, practised by one of the married parties towards the other, with such persistency as to have become the accustomed conduct of the party, and which is characterized by “personal violence,” entitles its victim to a divorce. This treatment must be habitual. A single act of violence ordinarily would not suffice. It might never be repeated. It need not have been frequent. It is not necessary for personal violence to attend the daily intercourse of the parties. If the treatment is persistently cruel and inhuman, and it is occasionally characterized by personal violence, so as to beget the apprehension that it is liable to occur again at any time, when tbe fury of passion may impel the offender, it is sufficient. Prior to the statute, such cruelty was ground for a divorce a mensa et thoro. Kenley v. Kenley, 2 How. 751. 1 Bish. Marriage and Divorce, § 715 et seq.

These parties were married in 1872, and in 1873 they had a temporary separation, after blows inflicted on the wife by the husband. A reconciliation took place, and the parties lived together, with much unhappiness, as is shown, until January 15, 1878, when the wife left her husband, and soon after-wards exhibited her bill for a divorce. The evidence shows a want of congeniality between these parties, from which it is probable their misery has sprung. The wife is shown to be affectionate, amiable and submissive. The husband is coarse, vulgar, profane, and wanting in affectionate regard for his wife. He was in the habit of wounding her feelings; often cursed her; sometimes kicked her implements of industry about the house or out of doors, in his fury; and twice in 1877, as the evidence shows, struck and choked her! What promise of good results is there from a continuance of the marriage relation between these parties ? Judging the future by the past, it can result only in continued unhappiness, with a just apprehension, on the part of the unoffending wife, of being the victim of the fury of her husband in moments of anger, liable at any time to be inflamed by-the most trivial circumstance, and to find expression in personal violence to her. The law does not doom her to such a state of continual dread. The “habitual, cruel and inhuman treatment, marked (in several instances) by personal violence ” of her husband towards her, entitles her to a decree severing the bond that binds her as wife to the husband who has so mistreated her.

The fruits of this unfortunate marriage are two childreu, one about four years old, and the other about two years of age. They should be with their mother. They need her care and attention. They would have been with her but for the breach .of his marital duties by their father, which drove the mother from her home. The decree will be reversed and cause remanded for a decree to be entered granting a divorce and awarding the custody of the children to the appellant.

So ordered.