Massey v. Massey

80 N.E. 977, 40 Ind. App. 407, 1907 Ind. App. LEXIS 73

• Court: Indiana Court of Appeals
• Decided: April 12, 1907
• Docket: No. 6,148
• Status: Published

Opinions

Hadley, J.

This is a suit instituted by appellant against appellee for divorce. Appellant filed an amended complaint, to which appellee filed a demurrer, which demurrer was sustained. Appellant refusing to plead further, judgment was rendered against him. The ruling of the court on the demurrer is the only error assigned. The complaint, after stating the marriage and the. residence of the parties, avers that they separated January 12, 1905; that during the time of their marriage appellee continuously charged appellant with .being untrue to her and of being an unchaste man; that she stated to numerous good citizens of the community that he was untrue to her and unchaste, all of which she knew to be false; that she endeavored to destroy his business, and constantly upbraided him for using her money •therein; that she was petulant, irritable, and constantly complaining ; that she frequently asserted she cared nothing for him, for his home, or his business, and refused to take any interest in his home, when able to do so, and also, when able to do so, refused to prepare the daily meals for him and his servants; that she read frivolous literature, to the neglect of her household duties; that she, for a long time prior to and on the day of separation, was cold, abusive, scornful, and indifferent to the happiness of the appellant; that by reason thereof she kept appellant in continual distress, and the trouble destroyed his peace of mind and broke up his home.

1. If this complaint states facts sufficient to constitute grounds for a divorce, it must be under the fourth clause of §1044 Burns 1901, §1032 R. S. 1881, which is as foliows: 1 ‘ Cruel and inhuman treatment of either party by the other. ’ ’ That there can be cruel and inhuman treatment without physical violence is now so well settled that citation of authorities is useless.

2. What constitutes cruel and inhuman treatment must be determined by the facts of the given case. As was said in the case of Kelly v. Kelly (1883), 18 Nev. 49, 1 Pac. 194, 51 Am. Rep. 732: “In considering extreme cruelty as a ground of divorce, courts have cautiously given it negative, rather than affirmative, definitions. The difficulty in giving it an affirmative definition arises from the fact that cruelty is a relative term; its existence frequently depends upon the character and refinement of the parties, and the conclusion to be reached in each case must depend upon its own particular facts.

3. ‘We do not divorce savages and barbarians because they are such to each other,’ said the supreme court of Pennsylvania, in Richards v. Richards [1860], 37 Pa. St. 225. ‘We can exercise no sound judgment in such eases [divorce cases] without studying the acts complained of in connection with the character of the parties, and for this we want the common sense of the jury rather than fixed legal rules.’ Richards v. Richards, supra.” Mere cold neglect has been held by our Supreme Court to be cruel and inhuman treatment, in the case of Rice v. Rice (1855), 6 Ind. 100, wherein the court say: “We may remark of this instruction that it seems to contemplate an entirely physical, sensual mew of the marriage relation; and if that relation has no aim to the social happiness and mental enjoyments of those united in it, the instruction should have been given. But if it is otherwise, if it be true that we are possessed of social, moral, and intellectual natures, with wants to be supplied, with susceptibilities of pain and pleasure; if they can be wounded-and healed, as well as the physical part, with accompanying suffering and delight, then, we think, that conduct which produces perpetual social sorrow, although physical food be not withheld, may well be classed as cruel, and entitle the sufferer to relief.”

4. False charges of infidelity by a wife of a husband, widely circulated in the community, may cause the keenest suffering to the husband, in comparison to which blows would be insignificant. And where, as averred’ here, these false statements are persistent, continuous, and are

coupled with coldness, neglect, lack of interest in family affairs, aggressive action against his means of livelihood, irritability, petulaney and scorn, to the extent' of breaking up his home, we can well perceive that they might produce the depths of distress and wretchedness that would naturally cause physical impairment. Kelly v. Kelly, supra; Holyoke v. Holyoke (1886), 78 Me. 404, 6 Atl. 827; Whitmore v. Whitmore (1882), 49 Mich. 417, 13 N. W. 800; Carpenter v. Carpenter (1883), 30 Kan. 712, 2 Pac. 122, 46 Am. Rep. 108; McGee v. McGee (1904), 72 Ark. 355, 80 S. W. 579; Spitzmesser v. Spitzmesser (1901), 26 Ind. App. 532. It is well settled that the false charge of adultery by a husband against his wife is grounds for divorce under the charge of cruel and inhuman treatment. Graft v. Graft (1881), 76 Ind. 136; Shores v. Shores (1864), 23 Ind. 546. And, in reason, a wife’s like accusation against the husband should be no less available to him in his suit for her cruelty. 1 Bishop, Mar., Div. and Sep., §1636; §1044 Burns 1901, §1032 R. S. 1881.

5. In a suit by the husband for divorce on account of cruel treatment, where no actual violence is averred, it must' clearly appear from the facts in the case that the acts of the wife have rendered the continuance of the marital relation so intolerable to the husband as to endanger his physical well-being. The averments of the complaint show that such a condition would exist under the facts therein averred, with a man of ordinary temperament, standing and self-respect. Appellee relies upon the case of McAlister v. McAlister (1888), 71 Tex. 695, 10 S. W. 294. From the reasoning in this case, it will appear that the statutes of Texas, and the decisions thereunder provide a different rule in cases of this character than that which obtains in this State, and we do not think it should be of controlling force. The court bases its decision upon the following statement: “Wisely or not, our statutes do not make occasional acts of adultery on the part of the husband a cause of divorce when sought by the wife. Otherwise, when the husband asks divorce from the wife taken in adultery. ’ ’

Cause reversed, with instructions to the lower court to overrule the demurrer to the amended complaint.

Myers, C. J., Roby, P. J., and Watson, J., concur. Com-stock and Rabb, JJ., dissent.