Jacobs v. Jacobs ( 1920 )

The record presents two questions for our consideration. Upon the first of them, we think the trial court correctly held that the finding of intolerable cruelty on the part of the defendant was warranted by the evidence before the committee. Cruelty includes any wilful act of a human being which inflicts unnecessary pain. Webster's Dict., Verb. So persisted in as to become "intolerable and to render a continuance of the (marriage) relation by the suffering victim impracticable," it grows into a ground for divorce.Morehouse v. Morehouse, 70 Conn. 420, 427,39 A. 516. The test of its unbearable character does not therefore necessarily depend upon any aggravated quality of the given act or acts of which it consists, but rather upon the persistent recurrence or continuance of conduct to which such acts give expression. An isolated act, though an inherently cruel one, may wholly fail, either in its nature or in the effect it is calculated to produce, to warrant characterization as intolerable, or beyond reasonable endurance; but if it is typical of conduct which forms the constant and daily habit of one in his association with and treatment of another, the cumulative effect upon its victim may well become so, within any fair and humane construction of such terms. So too, even if its continuance be not literally and strictly an unbroken one, if the conduct is so persistently recurrent at irregular intervals that its victim is never free from reasonable dread of it, or sure of even temporary respite from its infliction, it may necessarily acquire the same intolerable character.

From the evidence before him the committee might have found that the defendant on many occasions choked the plaintiff, — sometimes so violently as to cause her much suffering, and to leave both a soreness of the throat and the humiliation of tell-tale marks upon the skin; that this conduct was accompanied by acts and language indicating his infatuation for other women, and an apparent desire to provoke his wife into leaving him because he was tired of her; that it was practically continuous or recurrent at short intervals for a long period before the final separation of the parties, and injuriously affected her health. This was quite enough to warrant the conclusion of the committee.

The remaining ground of appeal deals with the question asked of Miss Atwood, and the trial court's treatment of the committee's admission of it as harmless error. Neither the question nor the mere "yes" which answered it and closed that line of examination, — as our inspection of the unprinted evidence discloses, — comes within any exception to the hearsay rule recognized in our practice, and the defendant's objection should have been sustained. A reference to the record clearly shows, however, that its admission cannot have harmed the defendant, and for these reasons: Another witness for the plaintiff, her mother, had already testified to having been told by her that the defendant choked her. This came in without objection, and in the course of the defendant's subsequent examination by his counsel his attention was called to the mother's statement and he was asked whether he had ever choked his wife. He said that "in a playful way" he had, — a sort of confession and avoidance that at once rendered harmless Miss Atwood's answer to the single inadmissible question that had been asked of her. Her testimony had been definitely limited by the committee to the simple fact of a communication by the plaintiff that chokings had occurred, — whether in outbursts of playfulness or otherwise, it did not appear, since Miss Atwood was in effect forbidden to say whether the plaintiff had enlightened her as to the quality of the husband's conduct attending the performances. The husband's answer, therefore, admitted the truth of everything which the committee, by his own expressed restriction, was warranted in gathering from Miss Atwood's testimony, and the trial court properly disregarded the error as one which did not harm the defendant.

Our conclusion necessarily disposes of the claim for a correction of the finding, which is without merit.

There is no error.

In this opinion PRENTICE, C. J., BEACH and GAGER, Js., concurred.