Braun ex rel. Steelsmith v. Braun

Opinion by Mr. Justice Geeen, This was a proceeding for divorce a vinculo by a wife against her husband in which the libel alleged cruel and barbarous treatment and also adultery. A jury trial was had and resulted in a general verdict in favor of the libellant. So far as the questions of fact are concerned, the verdict of the jury establishes the truth of both the charges. An examination of the testimony develops a great mass of evidence, far more than sufficient to justify the verdict on both charges. It seems almost incredible that any man fit to associate with his fellowmen could possibly be guilty of the vile indecency, the obscenity, the dreadful profanity, the coarse and brutal vulgarity with which this respondent constantly treated his wife. Added to this, his charges against the virtue of his wife, denying the paternity of [292] his children, accusing her of adulterous intercourse with other men, compelling her to take dangerous drugs, and urging her to consent to a criminal operation, all to produce an abortion, and spreading his accusations broadcast throughout the community, without any apparent cause except an insane and unfounded jealousy, make out a case of such cruel and barbarous treatment as is seldom heard in courts of justice. The language he constantly used to his wife is too filthy and vile to quote, but its citation is unnecessary in view of the verdict, which settles all controversy respecting it. There is really but one matter presented by the assignments of error that is worthy of the least consideration. The appellant claims that it was incompetent to set up two causes of divorce, cruelty and adultery, in the same libel, and therefore the libel should have been dismissed or the jury directed to find for the defendant. No decision of this Court is cited to support this contention; in fact, the question does not appear to have ever been before us. In 2 Bishop on Marriage and Divorce, sec. 327, it is said, “ If several matrimonial wrongs, as, for example, adultery and cruelty, are each made cause for the same kind of divorce, whether from bed and board or from the bonds of matrimony, the applicant for divorce may join all in one libel and take his decree for the one or more particular offenses which he proves. This is the universal practice in England and in our states.” In Young v. Young, 4 Mass. 429, it was said, “The libel in this case charged upon the respondent extreme cruelty and also adultery, and prayed a divorce a vinculo, or such other decree relative to the premises as to the court should seem just and lawful.” The bill was sustained. In McDonald v. McDonald, 1 Mich. N. P. 191, .it was held that a bill alleging two grounds for divorce, adultery and habitual drunkenness, is not for that reason multifarious. In Stokes v. Stokes, 1 Mo. 320, it was ruled that different causes of divorce may be joined in the same bill. In Morris v. Morris, 20 Ala. 168, it was said: “ But even if two distinct grounds for divorce are contained in the same bill it is not demurrable on that account.” In Quarles v. Quarles, 19 Ala. 363, it was held that a bill for divorce a vinculo matrimonii which alleges cruelty, adandonment and adultery on the part of the defendant is not multifarious. To the same effect are Fritz v. Fritz, 23 Ind. 388, and Griffith v. Griffith, 89 N. C. [293] 113. In Story’s Eq. Pleadings, sec. 257, it is said: “ The title to the relief prayed is the same whether one or the other of the several alleged grounds be proved. It is well settled that the plaintiff may aver facts of a different nature which will equally support his application.” The case of Johnson v. Johnson, 6 Johns. Ch. Rep. 163, cited for appellant, in which it is held these charges may not be united in the same bill, is ruled upon the special provisions of the New York statute which is different from ours in the points indicated. Thus the chancellor said: “ I feel well persuaded from a perusal of the statute which gives jurisdiction on'this subject, that the prosecutions for adultery and for cruel usage were contemplated as totally distinct and separate prosecutions.” Thus, upon authority, it seems that the point is not well taken. Upon principle we do not see any sufficient reason for holding that the libellant in a divorce case may not join two or more distinct causes for divorce in the same bill; especially where the decree is the same in both; that is, either both a mensa or both a vinculo. In this case the decree for either cause would be a vinculo. It is contended that the proper decree in a case of adultery ought to contain a prohibition against subsequent marriage with the paramour. But there is nothing in our act which requires that the decree shall contain such prohibition. The act simply provides that in such a case there shall be no such marriage, but that prohibition takes place by force of the statute and does not require the help of a decree, although it is very proper to insert it therein. In this case it happens that the court below made the general decree which gave the parties liberty to marry again. It was competent for the libellant to complain of this and ask the court to correct it, but the respondent has no cause of complaint, and is not entitled to be heard on that subject. Decree affirmed and appeal dismissed at the cost of the appellant.