McNeill v. McNeill , 125 Miss. 277 ( 1921 )

W. H. Cook, J.,

delivered the opinion of the court.

Mrs. Nannie W. McNeill, appellant, filed her bill in the chancery court of the Second district of Hinds county seeking a divorce from her husband on the ground of habitually cruel and inhuman treatment, and praying for temporary and permanent alimony. The husband, H. W. McNeill, filed Ms answer to the bill, denying the allegations thereof, and made his answer a cross-bill in which he sought a divorce on the ground of desertion for the statutory period, and upon the final hearing a decree denying a divorce to both parties was entered, and from this decree Mrs. McNeill prosecuted this appeal.

The conclusion which we have reached in this case makes it unnecessary to state the facts, and we decline to express any opinion as to the facts or the merits of the unfortunate disagreement between these parties; but we are of the opinion that, in passing upon the facts before him, the chancellor has applied an erroneous rule of law.

The final decree as entered recites that the court doth find as follows:

“That the complainant, Mrs. Nannie W. McNeill, is not entitled to the relief prayed for because of the act of violence, or one of the acts complained of, was made without malice; that the threat made by Henry McNeill was a pretended threat the purpose of which was to restrain the complainant from abandoning defendant, and that a threat is not sufficient in law for a divorce, especially where the abandonment was the provocation of the threat.

“The court doth further find that to warrant a divorce upon the grounds of cruel and inhuman treatment, that the cruel and inhuman treatment complained of must be habitual) malicious, and menacing to life or health. The testimony in this record does not indicate a situation of that kind.”

The announcement that to warrant a divorce on the ground of cruel and inhuman treatment, the cruel and inhuman treatment must be habitual, malicious, and menacing to life or health, is erroneous in two respects. It is difficult to formulate an accurate definition of “cruel and inhuman treatment,” as used in our statutes on divorce, which will cover all cases, and while the courts must adjudicate each case upon its own facts, the acts of alleged cruelty are to be judged by the effect produced and not by tbe motive prompting the act. A malicious motive is not the test, and if the cruel and inhuman effect is produced by the acts and conduct complained of, it is immaterial' whether such acts spring from the promptings of a malicious heart or from other motives.

The pronouncement that the cruel and inhuman treatment must also be menacing to life or health is also erroneous. It makes the right to relief depend upon the actual existence of danger to life or health and excludes a reasonable apprehension of such danger. In older that the complaining party may be entitled to relief, it is not necessary that danger to life or health shall in fact exist; but if the acts of cruelty are such as to create in the mind of the complainant- a reasonable apprehension- of such danger, relief should be granted.

In holding that to warrant a divorce on the ground of cruel and inhuman treatment the complaining party must show acts of cruelty which were malicious and actually menacing to life or health, the learned chancellor had applied to the facts in this case an erroneous test and one that is entirely too severe, and for this error this cause is reversed and remanded.

Reversed and remanded.