Miller v. . Miller , 78 N.C. 102 ( 1878 )

By the law of this State, a divorce from the bonds of matrimony shall be granted to a wife when her husband separates from her and lives in adultery. Bat. Rev., ch. 37, sec. 41. This act has been on our statute-book for many years. The statutes of perhaps most of our sister states are different. 1 Bish. Mar. and Div., secs. 703-707. We have no occasion to defend the policy of our legislation, but we may express the belief that infidelity on the part of husband is not more frequent here than elsewhere. It is agreeable also to find that the most recent legislation in England, the result of its most mature consideration and experience on this subject, is in principle the same with our own. The English statute may be found in 1 Bish. Mar. and Div., sec. 85, note.

Our act of Assembly further says:

"SEC. 5. The Superior Courts may grant divorces from bed and board on the application of the party injured . . . in the following cases: (1) If either shall abandon his or her family, or (2) shall maliciously turn the other out of doors, or (3) shall by cruel or barbarous treatment endanger the life of the other, or (4) shall offer such indignities to the person of the other as to render his or her condition intolerable and life burdensome, or (5) shall become an habitual drunkard."

The plaintiff does not claim a divorce a vinculo; but it is contended for her that the conduct of the defendant has been such as to bring him within the fourth of the above grounds for a divorce from bed and board; and that the adultery of the defendant under the circumstances attending it was such an indignity to her person as did in contemplation of law render her condition intolerable, etc. It has not been contended here that the indignity intended by the act must necessarily be one to a wife's body. It is conceded that there may be offenses to the mental and moral sensibilities of a wife of such a character and under such circumstances that, if continued, they will amount to cruelty, (106) which, in the sense in which the word is used in the law of England and generally in that of the United States, is the equivalent expression for what is called in our statute "such indignities as render her condition intolerable," etc. 2 Wait Actions and Def., 560, 561. An instance of such an offense would be the keeping of an abandoned woman in the house in which the husband and wife resided, and thus forcing the wife either to abandon her home or to submit to an association repugnant to her affections, her virtue, and her self-respect. Such conduct as this might also come under the second clause. Other examples less strong, but sufficient without violence to the person to constitute manifest cruelty, may be supposed. One of such is found in the recent English case of Kellyv. Kelly, 2 Prob. and Div., 59; 1 Bish. Mar. and Div., sec. 783. Another might be found in Everton v. Everton, 50 N.C. 202. In this case, however, although decided as late as 1857, it was held that the diversion of the husband in shooting one negro woman, the property of the wife, and whipping sundry others of his own, in close proximity to the chamber in which his wife was lying sick in bed, was not cruelty. This case is very far behind all the modern decisions on this subject, and would scarcely be decided in the same way at the present day.

It would be impossible, and we shall not undertake, to decide with any precision the course of conduct which will amount to legal cruelty, or to "indignities, etc.," within the meaning of the act. But it may confidently be said that the indignity, whatever may be its form or nature, must be such as may be expected seriously to annoy a woman ofordinary good sense and temper. If from bad health the wife is morbidly nervous or sensitive, that must be allowed for. But as nothing of that sort is alleged in this case, such a supposition may be omitted from our consideration. Generally speaking, the conduct of the husband must be such as might reasonably be expected to annoy a woman of an ordinarily sound and healthy nature. It must be repeated (107) or continued in, so that it may appear to have been done willfullyand intentionally, or at least consciously by the husband, to the annoyance of the wife. He must have reason to believe that his act or course of conduct will greatly and naturally annoy his wife, and must persist in it regardless of such annoyance.

We think the above rule is as favorable to the plaintiff as she can reasonably be thought entitled to. It is perhaps more so than is quite consistent with the authorities. If Everton v. Everton is entitled to any weight at all, it establishes a rule much harsher than this; and the cases of Butler v. Butler, Parsons Eq. Cases, 329, and Kelly v. Kelly, 2 Prob. and Div., 59, which are the most modern cases on this subject, and the most favorable to the plaintiff of any which I have found, say that the annoyance to the feelings of the wife must, either from its character or its persistency, endanger her life or health. See 2 Wait A. and D., 564;Powelson v. Powelson, 22 Cal. 358; Gholston v. Gholston, 31 Ga. 625. Tested by this rule, the case of the plaintiff of course fails; for it is not alleged that her feelings have been shocked to the degree of endangering her life or health.

The question then is, Can the plaintiff's case be brought within the very favorable rule which we have supposed to be applicable to such cases? The acts of adultery by the husband were repeated at intervals during a period of less than nine months, and resulted in the pregnancy of the female servant; but they were all committed during the absence of the wife from her home, and never came to her knowledge until, seeing the condition of the servant, she inquired into the cause of it, and upon being informed, she immediately left the husband's house, and has never since returned to it.

(108) In estimating the alleged indignity, I dismiss from consideration that it was committed in the bedroom in which the husband and wife slept when she was at home, as being a mere poetic and fanciful, and not a real, aggravation. Whatever weight might be assigned to it, it was unknown to the plaintiff until after this action was brought. After the offense of the husband became known to the wife, it was never repeated, and the husband entreated forgiveness and promised future fidelity. It is evident that the case does not come within the principles which we have supposed should apply. The conduct of the husband, though immoral and blamable, was only such as many a sensible and good-tempered wife has thought it wise, and dutiful, and according to the impulses of her heart, to be blind to, or generously to forgive. The husband's conduct was not consciously or willfully to the annoyance of the wife. His acts were not intended or expected to annoy her, for he never expected her to know of them. The indignity to her feelings was not willful on his part, but accidental, resulting from her inquiries, which were not anticipated by him.

We cannot think the defendant's conduct, however reprehensible, was such "indignities" as was intended to be covered by the statute, or was calculated to render the condition of any reasonable woman "intolerable or her life burdensome." This is not a case in which the law ought to interfere to sanction, and perhaps perpetuate, the separation of a married pair who may again unite without impropriety, and without the loss of self-respect on the part of either, and, taught by experience, may live henceforth happily together. An English poet once gave advice to husbands, which Lord Chatham made immortal, even if its own good sense had not otherwise have served to make it so, by quoting it in one of his great speeches on the policy of Britain towards America. The advice will equally teach wives how to manage their husbands:

(109)

"Be to his faults a little blind, Be to his virtues very kind, And clap your padlock on his mind."

PER CURIAM. Action dismissed.

Cited: Page v. Page, 161 N.C. 175.