Mack v. Handy

The opinion of the Court was delivered by Watkins, J. Plaintiff sues her husband to obtain against him judgment of divorce, and in the alternative a separation from bed and board. Her petition is elaborate, and the charges and specifications are quite numerous. They are to the effect that for several years past defendant has been guilty of “habitual intemperance” and “excesses, cruel treatment and outrages towards her; that he has cursed, abused and insulted her without cause, in public and private; and that such habitual intemperance, ill-treatment and excesses are of such a nature as to render their living together insupportable.” It also charges that defendant has not supported her and her children properly and decently; but that he has spent his means in riotous living, dissipation and debauchery in the company of disreputable associates and lewd and abandoned women. That his general conduct, habits and manners are of such character that she is, and has been, in constant fear of herself and little children sustaining great bodily harm at his hands. Slie specially charges that he has been guilty of repeated adulteries. The defendant pleads the general issue; no cause of action, — because petition shows that whatever causes she may have had have been condoned and extinguished by reconciliation; and finally that plaintiff has been improperly influenced to institute this suit, because he desired to remove to Canton, Miss., where he could better support and take care of them. I. In the lower court plaintiff’s demand for a divorce was rejected, but the demand for separation from bed and board was sustained; and the — 495 — defendant alone appeals. But, in in this Court, the plaintiff has answered the appeal and prayed for an amendment of that decree, to the end that she have judgment of divorce, in this manner all the issues raised in the lower court are presented here for decision. On the trial defendant excepted to the ruling of the judge a quo permitting the introduction of evidence in support of the charge of adultery, on the ground that the allegations of plaintiff’s petition were too vague and indefinite to admit of proof under them. An examination of the petition will show that this vagueness and generality of averments, in respect to this charge, was intentional and was actuated by a pure and proper motive, to avoid the recital of painful and disgusting details. The petition clearly intimates to the defendant and the court, her entire willingness to spread them upon the record, if deemed necessary or desirable. Before the case came on for ferial, and prior to issue being joined, the plaintiff propounded interrogatories to Dr. Priestly, of Canton, Miss., and a well known druggist of this city, in which the character of the evidence she would rely upon, was clearly indicated; and, conferadictorially with him, obtained a commission to obtain their answers. In addition, the judge a quo in passing upon his objections to the evidence, stated that if he was taken by surprise, he would allow him ample time to procure evidence in rebuttal; but defendant failed to avail himself of the privilege. We fail to see in what respect the defendant has had injustice done him. II. Defendant further objects to any evidence being introduced for the purpose of establishing cruel treatment, habitual intemperance and other charges in support of a decree of separation from bed and board. 1st. Because it is not specifically claimed in Ike prayer of the petition. 2d. Por the reason that a divorce and separation from bed and board cannot be demanded on one and the same suit. Our predecessors decided both objections in the negative. 10 Ann. 663, Ledoux vs. Her Husband. In 7 La. 282, Soovi vs. Ignogoso, the Court held that “ a suit for a separation from bed and board, within the terms and meaning of the law, is an action of divorce. * * * “ The action of separation from bed and board, in all cases, leads to a divorce a vinculo matrimonii.” The Code expressly provides that “ in the cases excepted above, a — 496 — judgment of divorce maybe granted in same decree, which pronounces the separation from bed and board.” R. C. C. 139. One of rhe exceptions referred to is adultery. The objections were properly overruled. 1IL The defendant farther excepted to the introduction in evidence of certain admissions of his as proof of adultery. It has been held that in such suit as this “ the law requires more than a simple confession of one of the parties to dissolve the bonds of matrimony between them; facts must be shown, and such facts as will authorize a court of justice to declare that the interference of the law is absolutely necessary.” 16 La. 27, Harmon vs. McLeland. Courts may, without impropriety, entertain such proof, in corroborai.ion of other proven facts, from which adultery may be inferred, but not as substantive evidence. Such proof is insufficient of itself to convict the defendant. IV. Possession by the defendant of suspicious mixtures, which were, taken, by drug-gists and physicians, to have been a remedy in use for some venereal disease, is circumstantial proof insufficient to make out a case against him. There is a possibility that it may have been prepared and in use for a different purpose or disease. It is not certain that it was his, or in use at any time by him, though the indications point that way. But these are circumstances that are to bo and have been considered, in connection with others, in deciding the points. The soiled linen may be referred to some other cause or trouble, such as piles, tumors, boils, etc. True it is, that no specific act or fact has been proven with that degree of certainty that the law requires. And there is in the evidence nothing in time, place or circumstance to connect those suspicious indications with the defendant’s confessions. In fact, his statement, taken as a whole, does not admit criminal conversation with any one. From the evidence it appears that the suspicious indications appeared in 1877 and 1878, and were continued in 1879 and 1880, and again in 1882, from time to time during those several years. But during all these years the plaintiff and defendant resided together and lived as man and wife. In November, 1879, a son was born of their marriage, and in August, 1881, a daughter. They are shown to be perfectly healthy, bright and intelligent children. It seems quite impossible that defendant could have led the dissolute life attributed to him during these years, and that he should have — 497 — been so frequently under treatment for venereal ailments, without contributing it to mother or children. In this particular the judgment rejecting plaintiff’s demand was correct. Y. Objection was urged by defendant to the introduction of proof of intemperance since the filing of the suit. The judge a quo permitted it; not to show a substantive cause, but a “confirming habit.” That was correct. He urged further objection to proof of his gambling, on the ground that there was no allegation justifying it; but the court below permitted it to be introduced in support of the charges of “ squandering money and debauchery.” Tn this, his ruling was correct also. A careful reading of the evidence in this large transcript, satisfies us that the defendant has been addicted to dissipation and drunkenness during a series of eight or ten years. The proof shows that he was a traveling salesman, professionally, and that the theatre for his operations was the State of Mississippi. I-Iis parents resided at Canton, Miss., and died there. He has brothers who still reside and are engaged in business in that town. He married the plaintiff in this city in 1874, and for several years thereafter he represented as drummer several responsible, houses. His business qualifications appear to be fair, and of such a character as to have enabled him, with prudence and economy, to have supported and maintained his wife comfortably; but from the evidence it may be fairly assumed that he spent the most of his means in gambling, dissipation and riotous living. One of his brothers states that he was known to have been a “drinking man” before his marriage. A sister testifies to his being frequently drunk since his marriage, and that, at such times, he would abuse and mistreat the plaintiff. Other witnesses who, from the close and intimate relations they held with his family, must have been very intimately acquainted with his habits, state that defendant very frequently came home late at night and very drunk, and on such occasions was boisterous, abusive and often obscene in the presence of his wife and family. Two witnesses detail numerous acts of defendant’s cruelty and unkindness to the plaintiff; and on some occasions when she was sick, and on one or tw'o occasions soon after her confinement. The-phrase “habitual intemperance” scarcely requires an interpretation ; it is easily understood. It means the custom or habit of getting — 498 — drunk. The constant indulgence in such stimulants as wine, brandy and whisky, whereby intoxication is produced. Nob the ordinary use, but the habitual abuse of them. The habit should be actual and confirmed. It may be intermittent. It need not be continuous, or even of daily occurrence. Defendant has been habitually intemperate for a great many years. It seems to have been his habit, on all occasions whilst in this city, and at his home, and with his family. On one occasion he had an attack of delirium, tremens. He frequently staid out all night, without advising his family of his whereabouts •, but when he did return, he gave undoubted evidences of drunkenness and debauchery. It is quite impossible to give, in detail, even the salient facts adduced on the trial in the court below, in support of the grave and serious charges against defendant. Suffice it to say that, to our minds, they are clear, cogent and conclusive. They were to the judge a quo, and we concur in his conclusions. The plaintiff is a lady of taste, refinement and culture, and accustomed to the amenities of good society. The very idea of coercing her to continue her marital relations with the defendant, under the circumstances detailed, is shocking to our sense of justice and morality. We feel no hesitancy in deciding that the habitual intemperance and excessess of defendant, and his ill-treatment of the plaintiff, were such as to render their longer living together as man and wife insupportable to her. And this is said with due regard for the time-honored rule that courts should not lend their aid to effect the separation of spouses, especially when there is issue of their marriage, except in extreme cases. But in a case like this the dictates of good morals, good breeding and Christian charity require that the tie that binds should be severed. The separation will not be necessarily irrevocable. When a year shall have elapsed, and the plaintiff and defendant have had time and opportunity for reflection, he may have changed his career and become a sober and orderly citizen, and she may feel willing to resume marital relations with the father of her children, condone all past offenses, and unite her efforts with his renewed exertions to achieve the happiness both had so nearly lost. VI. The evidence does not establish such reconciliation as the Code contemplates, as extinguishing the cause of action. The plaintiff was possessed of no means or home of her own. Her mother had none. — 499 — The defendant relied solely upon his own exertions to earn a livelihood for himself and family. She had no alternative but to remain in Ms homo and endure, as best she could, through all those years, his habitual intemperance and excesses, for the sake of their little children. This heroic endeavor serves rather to strengthen than weaken her cause of action. The language of this Court in Terrell vs. Bowman, 34 Ann. 306, is strictly applicable. “The forbearance of a wife and her patience in bearing with the cruel treatment of her husband in the fond hope of his reform and of his being restored to her as a kind husband, and to her children as an affectionate father, until at last she sees that all hope is lost, must not be confounded with or construed as condonation or reconciliation as contemplated in our laws and expounded in our jurisprudence.” Judgment affirmed.