Carr v. Carr , 171 Ala. 600 ( 1911 )

MAYFIELD, J.

Appellant filed her bill for divorce on the ground of cruelty. The husband failed to answer, and a decree pro- confesso was duly taken against him. Evidence was then taken by the complainant, which, if true — and there was nothing to the contrary— proved the averments of the bill. And the averments were sufficient under the statute.

The complainant testified as follows: “The defendant and I were married in Bessemer, Ala., on the 17th day of October, 1906, and lived together as man and wife in said city and county until on or about the 13th day of September, 1908, at which time defendant, Zenus Carr, ran me out of his house and threatened to kill me, and from his conduct I was put in fear of being done great bodily harm by trying to remain with him and live with him; that defendant, just prior to the day of the separation, cursed me and threatened to kill me, and struck at me with a- chair.” Mattie Johnson testified as follows: “I know Lucy Carr and Zenus Carr, and have known them since before they were married. I lived right' close to him during the time they lived together, arid visited them often, and lived in the house with them some. I was present the day they separated. Zenus Carr ran Lucy Carr out of the house and threatened to kill her, and cursed her in the bitterest sort of manner, and told her he would kill her if she ever returned.” Edna Townes testified to substantially the same facts. On what theory the court dismissed the bill we are not informed. There is no opinion of the judge; and, as the respondent never appeared, no counsel appears for appellee. .

In the case of Smedley v. Smedley, 30 Ala. 715, this court, by Rice, C. J., spoke as follows on this subject: “According to the authorities, the suit for divorce on the ground of cruelty is substantially a proceeding quia timet. The court interferes, not merely because acts of cruelty have been committed, nor to punish such acts, but to afford protection to the complainant for the future. Bishop on Marriage and Divorce, § 454 — 501, where the authorities are collected. Any conduct on the part of the husband,' which furnishes reasonable apprehension that the continuance of the cohabitation would be attended with bodily harm to the wife, is legal cruelty to her. Of course, an act of unlawful violence on his part, occasioning pain and injury to her, and implying future risk to her life, limb, or health, amounts to cruelty. But there may be cruelty in him, without actual violence.” This decision has been followed in the cases of Turner v. Turner, 44 Ala. 449, Goodrich v. Goodrich, 44 Ala. 670, Folmar v. Folmar, 69 Ala. 84, and Wood v. Wood, 80 Ala. 256.

The decree appealed from' is reversed, and a decree will be here rendered in accordance with the prayer of the hill.

Reversed and rendered.

Simpson, McClellan, and Sayre, JJ., concur.