Johns v. Johns , 29 Ga. 718 ( 1860 )

— Lumpkin J.

By the Court.

delivering the opinion.

[1.] The testimony of George Johns, Junior, the son of the plaintiff, is so contradictory and confused, that 1 scarcely deem it necessary to analyze it minutely. It would be dangerous in the extreme, to put asunder what God has joined together, upon such proof.

Much of it should have been rejected, especially the information which Mrs. Wheeler gave to him, that strychnine was put in the biscuit and coffee. And that was all the knowledge he had upon the subject. The communication led to no discovery whatever. For the fact was not proven that the articles of food were poisoned. Nor should he have been allowed to testify that he stood at the feet of his father to protect him from being poisoned.

[2.] We think the Court was right in admitting the confessions by the parties against themselves. There is no pretence that there was any collusion between the parties to procure a divorce.

[3.] We hold, too, the Court committed no error in refusing to charge the jury, that the interview at Jacksonville, Florida, between plaintiff and defendant, as proven by the witness, Roberts, was a condonation of the libel. It was proper and overwhelming testimony, to be urged in argument to the jury, to show that the husband did not apprehend any danger from living with his wife; and thus to rebut the charge of cruelty at her hands. It amounted to this and nothing more.

The libel was founded upon two grounds — adultery and cruelty; but there being no proof to support the first charge, except the saintly kiss, witnessed by young Johns in the parlor, between his step-mother and Mr. Wheeler, the husband perhaps of Mrs. Wheeler, the informant of the naughty doingsj of Mrs. Johns, the case went to the jury upon the charge of cruelty alone.

[4.] Can the defendant counter-plead to this, the offence of adultery in the plaintiff? It has been held by the English Courts, that cruelty cannot be pleaded in bar to a suit for adultery; but the converse of this proposition has not been laid down, namely, that when the husband alleges cruelty against the wife, she cannot defend by showing his adultery. And, indeed, it appears that she can. 2 Atkins, 96; 7 Eng Ecc. Rep. 377, 380; add Ecc. Rep. 411-12; Eng. Ecc. Rep 158, 171.

In Missouri they have a statute similar to our Act of 1850, (Cobb, 2%Q,) upon the subject of divorce. It has a provision too like ours, that where both parties are guilty, no divorce should be decreed. And under this statute, the Courts of that State have held, that the decree must be refused where both parties are guilty of any of the enumerated offences. Neagle vs. Neagle, 12 Miss. 53; Ryan vs. Ryan, 9 Ibid, 539.

And it occurs to us that it is difficult to answer the reasoning which conducts to this conclusion. For if each offence is the same, it cannot be said that one is more heinous in law than another, however it may be in morals. Each alike authorizes a total disruption of the nuptial tie. And in law, as in mathematics, things that are equal to the same thing, are equal to one another. True, our statute does not make it imperative to grant a total divorce in all cases of cruel treatment. But the discretion operates against the plaintiff in this case. His adultery demands it, whether the wife’s cruelty does or not.

The law contemplates the innoeence of the party seeking the divorce. How can the Courts decide which is the innocent and which the injured party, when both, under the statute, are in pari dilecto ? Can either have the contract vacated at the expense of the other, when it has been equally infracted by both ?

The true rule, we apprehend, although it is not necessary to go so far in this case, is to allow the defendant to recriminate for any of the causes which would dissolve the contract, whether it be eodum dilectum or not.