Sapp v. Sapp , 71 Tex. 348 ( 1888 )

Gaines, Associate Justice.

This is a suit for a divorce brought by the husband, who is appellant here, against the wife. The ground of the action was cruel treatment.

The plaintiff proved that he had been to his wife a kind and dutiful husband; but that while his wife was suffering from an attack of pleurisy, she refused to drink a cup of coffee, he had prepared for her at her request, until he had drank from the cup himself; and that she charged in substance, that he was attempting to take her life, and wished to poison her. One Mrs. Holden, who was a witness in the case, was present attending upon Mrs. Sapp at the time. Ho other person was present except the parties to this suit. Mrs. Holden, after the wife’s refusal to drink the coffee prepared by the husband, prepared another cup, which Mrs. Sapp drank, but not until the husband had first drunk a portion of it. Shortly after this the wife declared her intention to go to her children, who it seems lived at her own house; and the husband finding his remonstrances unavailing, finally removed her. This was in Hovember, 1886. In July of the following year, he went to her and entreated her to return to his home. This she refused, offering to live with him at her own house. He then proposed to procure a residence in a neighboring town, if she would live with him, but this she also refused. The physician who attended Mrs. Sapp during her illness, testified that he saw no signs of mental aberration, although he stated that the disease is accompanied by fever, which sometimes produces “fligbtiness,” and sometimes delirium.

We think the court did not err in holding the evidence insufficient to warrant a divorce. It is unnecessary to enter upon any extended discussion of the law as applied to these facts. Compared with the rulings in other States, our courts have given a most liberal construction to our statutes defining the grounds of divorce. They hold that, to constitute such cruelty as will authorize a divorce, that it is not necessary that physical injury should be inflicted or threatened, but that mental suffering, when intentionally imposed, may be so grievous and lasting as to warrant a dissolution of the bonds of matrimony. (Wright v. Wright, 6 Texas, 3; Sheffield v. Sheffield, 3 Texas, 79; Taylor v. Taylor, 18 Texas, 574; Bahn v. Bahn, 62 Texas, 518; Jones v. Jones, 60 Texas, 451.) In the great majority of the cases in which this doctrine has been announced, the cruelty consisted mainly in a charge of adultery by the husband against the wife, and the specific act of cruelty has been supported by proof of other wrongs. Bahn v. Bahn, supra, is probably the only exception in our Reports to the rule that something more than a single public accusation of an offense is necessary in order to warrant a divorce. We are referred to no decision where a divorce has been granted the husband on the sole ground of a false charge against him, publicly promulgated, by the wife.

There is no evidence in the record of any act of cruelty on part of the wife towards the husband, except the expression of her fear that he wished to poison her, or of any other undutiful conduct, except her leaving his bed and board and living apart from him with her children. When the charge was made, there is no evidence that anything had transpired to arouse resentment or ill will towards her husband, or in fact that it was prompted by any desire to injure him. It does not appear that it was ever made before or afterwards. Under these circumstances, it is not surprising that the trial judge asked the medical attendant who was examined as a witness as to the probable condition of her mind during the time of her sickness. It would seem from the evidence that the theory that the fears of poisoning expressed by the defendant were the result of a temporary aberration of mind produced by sickness, is about as reasonable as any othes hypothesis that can be brought forward.

But further, our statute only authorizes a divorce of a married couple for “excesses, cruel treatment or outrages,” when “such ill treatment is of such a nature as to render their living together insupportable.” (Rev. Stats., art. 2861.)

Very soon after the alleged wrong, the plaintiff remonstrated against his wife going away; and after she had gone and continued to live apart from him, he went to her and sought to induce her to return to his house, offering even to change his residence to accomplish that result. Under these circumstances, it would be absurd to say that their living together was insupportable to him. His conduct is utterly inconsistent with the theory of his case.

There is no error in the judgment, and it is affirmed.

Affirmed„

Opinion delivered October 19, 1888.