Wood v. Wood , 80 Ala. 254 ( 1885 )

CLOPTON, J.

So long as the statute was in force, which made the cruel, barbarous and inhuman treatment of the husband a ground of divorce in favor of the wife, the question of the kind and degree of cruelty was open for adjudication by the courts; and included the scope of the ingenuity of an unmanly, heartless and tyrannical man to devise plans to harass and torture a refined and sensitive woman, as endangering to life or health, though it may be more lingering in its operation, . as personal violence. The present statute, under which this bill is brought, undertakes to define the kind and degree of cruelty necessary to constitute a cause of divorce. The language is: “ In favor of the wife, when the husband has committed actual violence on her person, attended with danger to life or health, or when, from his conduct, there is reasonable apprehension of such violence.” Under the statute, it is requisite that there shall be physical or bodily violence or a reasonable apprehension of such violence, as distinguished from harsh .and criminatory words, rude and offensive manners, want of civil attention, or other conduct, which wounds the feelings, shocks the sensibilities, and occasions grief, and sorrow, and domestic infelicity, but do not cause a reasonable apprehension of bodily harm. Such has been the construction of the statute since its enactment. Folmar v. Folmar, 69 Ala. 84; Goodrich v. Goodrich, 44 Ala. 670. With this judicial construction the statute was re-enacted, and incorporated in the Code of 1876. (§ 2687.) Other conduct or words, insulting, offensive or neglectful, may be received in aid of proof of personal violence, actual or threatened, as tending to show, whether it is attended with danger to life or health, or whether the conduct .is of a character to cause such reasonable apprehension. This is the purport of the decision in Smedly v. Smedly, 30 Ala. 714, when construed in reference to the facts of the ease.

The allegations of the bill, which are taken as true on demurrer, make a case of an absence of common attention; a non-observance of the most ordinary courtesies; heartless neglect ; an unfeeling indifference to the comfort and relief of his wife in sickness; a disregard of the obligations of marital vows ; holding the wife in the capacity of a menial servant, when able to relieve her from such service, instead of an equal and companion in life; viewing the marriage relation as merely physical and sexual; and a want of affection for his own offspring. While the bill makes a case of treatment and conduct, disgraceful to the husband, and deplorable to the wife, productive of domestic unhappiness, there is no allegation of actual violence on her person, or of threat or conduct, from which there is reasonable apprehension of such violence.

Affirmed.