Beauchamp v. Beauchamp

Opinion by THACKER, C. (after stating the facts as above). Plaintiff in error will be designated as defendant and defendant in error as plaintiff, in accord with their respective titles in the trial court. The ninth subdivision of section 4545, St. 1893 (section 4962, Rev. Laws 1910), makes “gross neglect of duty” a ground for divorce. This use of the word “gross” requires that the “neglect of duty” must be so glaring, flagrant, shameful, or monstrous, under all the relevant facts of the case, as to be obvious to the common understanding and inexcusable. Smith v. Smith, 22 Kan. 699; Peabody v. Peabody, 104 Mass. 195; Thorp v. Thorp, Wright (Ohio) 763. One of the definitions of the word “gross,” and the one in point here, given by Webster’s New International Dictionary is: “Out of all measure; beyond allowance; not to be excused; flagrant; shameful; as, a gross dereliction of duty; a gross injustice; gross carelessness.” As held in Lee v. Lee, 38 Okla. 388, 132 Pac. 1070: “A substantial failure of a husband to provide suitably for his wife’s support when he is able to do so is gross neglect of duty, entitling the wife to divorce.” ' But, in the absence of evidence reasonably tending to show either that the defendant was able to contribute to the support of the plaintiff and their daughter, or that they were dependent upon him for support, and in the absence of evidence reasonably tending to prove that she had any just cause for abandoning him, it cannot be said he was guilty of “gross neglect of duty” in failing to support her and their daughter, who was with *637 her, or to make any substantial contribution to the support of either during their abandonment of him after October 16, 1910, when the district court of another county denied her petition for divorce on the same ground upon defendant’s demurrer to her evidence. The judgment of the trial court should be reversed, and the case should be remanded for another trial. By the Court: It is so ordered.