May v. May

The opinion of the court was delivered, by Williams, J.

This was an action by a wife against her husband for money which he had received for her use from the administrator of her father’s estate, and from the sale of her personal property. The wife had separated from her husband, and it was conceded, on both sides, that she was not entitled to maintain the action unless she had reasonable cause for leaving her husband; and whether his ill treatment of her was such as to justify her separation, was the main question in controversy in the court below. If it was such as to entitle her to a divorce, then she was justified in leaving him. The act specifies two causes or grounds of divorce for ill treatment: 1st. When the husband has, by cruel and barbarous treatment, endangered his wife’s life ; 2d. Or offered such indignities to her person as to render her condition intolerable and life burdensome. It is important that these two-causes should not be confounded, but kept separate and distinct in considering the question raised by the first assignment of error.

It is not every act of cruelty, on the part of the husband, that will entitle the wife to a divorce — this ill treatment may or may net endanger her life. But to entitle her to a divorce for the cause first specified, there must be actual personal violence, or the reasonable apprehension of it; or such a course of treatment as endangers life or health, and renders cohabitation unsafe: Butler v. Butler, 1 Pars. 329; Gordon v. Gordon, 12 Wright 238 . It is not necessary that there should be repeated and continuous acts of cruelty in order to entitle the wife to a divorce. 'A single act of cruelty, on a single occasion as suggested in Richards v. Richards, 1 Grant 391 , may be so severe, and attended with such corresponding circumstances of atrocity as might, under a fair and liberal construction of the act, justify a divorce. But no single act of cruelty, however severe, that comes short of endangering life, is sufficient to justify a divorce.

But' cruel and barbarous treatment is not the only ground for a divorce. Indignities to the person constitute another cause. What acts or course of conduct will amount to such indignities seems to be nowhere defined, and perhaps they aré incapable of specification or exact definition. But they must be such as, in the language of the act, render the wife’s condition intolerable and her life burdensome. A single act of indignity will not be sufficient. There must be such a course of conduct, or continued treatment as renders the wife’s condition intolerable and her life burdensome : Richards v. Richards, 1 Wright 227 . But must the ill treatment or indignities to her person be such as to endanger her life or health ? The act does not so declare, and I am not aware of any case which, in express terms, gives to this clause of the act any such construction. Such an interpretation is not demanded *211 by tbe language or spirit of tbe act, and would be tbe insertion of a qualifying provision never intended or designed by the legislature. The language of the act is so plain and clear, and the reasons which influenced the legislature in framing the two clauses precisely as we find them are so obvious, that there can be little or no doubt as to their meaning. The husband’s treatment of his wife may be so cruel and barbarous as to endanger her life; and whenever it is so endangered, whether by one or more acts, the legislature intended that it should be a good cause of divorce. The husband, without immediately endangering the life or health of his wife, may offer such indignities to her person as to render ,her condition intolerable and her life burdensome; and whenever this is the case the framers of the act intended that it should be a sufficient cause of divorce. It is true, that such a course of treatment as would render the wife’s condition intolerable and her life burdensome might, in the end, impair her health and shorten her life; but there are indignities to the person which would not seriously endanger her life, though they would render it too humiliating and burdensome for her to bear. If the husband should be in the habit of whipping his wife with a cowhide, from time to time, it might not seriously endanger her life or health; but would not such treatment render the condition of any woman of ordinary sensibility and delicacy of feeling intolerable and her life burdensome ? The act carefully distinguishes cruel treatment from indignities to the person (Gordon v. Gordon), and requires that the first shall endanger life in order that it should be a cause for divorce; and if the legislature had intended that the “ indignities to the person of the wife” should be of such a character as to endanger life it would have been easy for them to have said so. The omission of any such qualifying provision is the best evidence that they did not intend that it should be superadded. It follows that the court did not err in instructing the jury, in answer to the defendant’s 1st point, that if Mrs. May left without her husband offering her such indignities to her person as to render her condition intolerable and life burdensome, she cannot recover-; but to enable her to recover it is not necessary that the husband’s treatment should be so cruel and barbarous as to endanger her life.

Nor was there any error in the answer to the defendant’s fourth point. It was predicated of the assumption, or hypothesis that nothing but the husband’s cruel and barbarous treatment of his wife would justify her desertion. If there was no evidence of any such cruelty and barbarity as would justify the wife in leaving her husband, it does not necessarily follow that the plaintiff could not recover. His ill-treatment, though it may not have endangered her life, may have been such as to justify her separation; and if so, the court might properly decline to instruct the jury as requested, and refer the evidence, to them, as the learned judge *212 did, to determine whether the defendant offered such indignities to the wife’s person as to render her condition intolerable and life burdensome. Was there then any evidence of any such indignities? We think there was, and that, if believed, it was sufficient. His whipping her with a- cow-hide — his unkind and inexcusable conduct during her confinement, showing an uttter want of affection and 'sympathy for her — his installing another as mistress of the house, to whom the keys were committed, and who denied the wife access to the cupboards in her own house— his harsh and severe treatment of her the night before she left, as evidenced by her screams and the marks of violence on her person —and his subsequent conduct, and the feeling which he evinced when the witness, Creswell, went with the wife to the defendant’s house “to try and settle the difficulty” between them, was evidence of such ill-usage as justified the court in submitting the ease to the jury. The husband gave evidence tending to show that the wife was in the habit of taking laudanum to such an extent that she became dull and stupid from its effect, and that his conduct towards her was kind and considerate. The evidence in this respect was conflicting, and the case was properly submitted to the jury. It was observed by Lowrie, C. J., in Richards v. Richards, 1 Wright 228 , that “ We can exercise no sound judgment without studying the acts complained’ of in their connection with the character of the parties, and for this we want the common sense of the jury rather than fixed legal rules.” Both the court and the jury who saw the parties and their witnesses were satisfied that the wife was justified in leaving her husband, and we cannot say that there was no evidence, or that it was legally insufficient, to justify their finding.

If the plaintiff was justified in leaving her husband, as the jury have found, there was no such evidence of reconciliation, or offer of support on his part, as would prevent the plaintiff from maintaining the action. His offer of support, considering the manner and the circumstances under which it was made, reflects but little credit on his conduct and character as a husband. “ He appeared excited:” this is the testimony upon which the defendant’s point was founded, “ and spoke in a harsh manner, and said she might occupy a small room down stairs on the first floor; and could come to the table and get her meals, but could, have no control of the kitchen or household affairs. He said he had a girl keeping the house and doing the work. Mrs. May said she could not submit to these propositions — that the girl had locked everything in the kitchen, and would not permit her to take any partj and treated her very unkindly — she would rather be dead than lead such a life.” The defendant made another proposition: “ that if she would agree to give him a divorce, he would then be willing to pay her back all the money he had received from her.” *213 Under this evidence it could hardly he expected that the court would charge the jury, as matter of law, that the plaintiff could not recover.

The only remaining assignment, requiring notice, is that which relates to the instruction of the court as to the allowance of interest. The court charged that if the jury found for the plaintiff, that the money was received by the husband for the wife’s use, they might allow her interest from the time it was received. When the husband uses his wife’s money with her consent for the benefit of the family, without any agreement on his part to pay interest, he will not, as a general rule, be liable therefor. But if he receives the money for her use, and appropriates it to his own, without her permission, there is no reason why in such case he should not pay interest: Millinger’s Administrator v. Bausman’s Trustee, 9 Wright 529 . There was no evidence in this case that the husband had used his wife’s money with her consent; on the contrary, the evidence strongly tended to show that he used it without her permission. Under these circumstances there was no error in instructing the jury that they might allow interest from the time it was received, and on the note from the time it became due.

As we discover no error in any of the instructions of the court, of which the plaintiff in error has any reason to complain, the judgment must be affirmed.

Judgment affirmed.