Burt v. Burt , 261 S.W. 407 ( 1923 )

This is an appeal by the wife from a judgment of the court below granting her husband a divorce from her on the ground of cruel treatment, pursuant to R.S. art. 4631, subd. 1, providing for a divorce —

"Where either the husband or wife is guilty of excesses, cruel treatment or outrages toward the other, if such ill treatment is of such a nature as to render their living together insupportable."

There were no children of the marriage, no community property, and in support of the appeal only two contentions are made: First, that appellant's general demurrer to the petition of plaintiff below should have been sustained; and, second, that the evidence was insufficient to sustain the fact findings and to support the legal conclusion based thereon of the trial court.

The trial below was before the court without a jury, and fourteen detailed findings of fact with a conclusion of law appended, to the effect that the facts so found constituted in law such cruel treatment as justified the divorce, were filed.

After an examination of the plaintiff's petition, in the light of our statutes and the decisions of our courts affecting the subject. We are unable to agree with appellant that her general demurrer to it was good. As against such an attack it is, of course, entitled to the benefit of every reasonable intendment, and, when construed under that requirement, it is, in our opinion, so clearly sufficient that it is not thought necessary to enter into an extended discussion of the matter.

Appellant's main objection to the petition seems to be that it never alleged physical violence on the part of the wife toward the husband, nor the fear of it, nor even that the acts complained of were reasonably calculated to produce such degree of mental distress as would impair his health; the further objection being that the injury to him was not sufficiently charged.

It is quite true that the petition does not allege physical violence or the fear of it, but we do not understand that to be the requirement in this state. As far back as 3 Tex. 79, in the case of Sheffield v. Sheffield, our Supreme Court, in discussing this question said:

"It cannot be doubted that a series of studied vexations, and deliberate insults and provocations, would, under our statute, be sufficient cause for divorce, without apprehension of personal violence, or bodily hurt. This would constitute the intolerable treatment contemplated by the statute."

To the same effect, under even more direct and positive pronouncements, are the holdings of our courts in Wright v. Wright, 6 Tex. at page 19; Eastman v. Eastman, 75 Tex. 473, 12 S.W. 1107; Dawson v. Dawson,63 Tex. Civ. App. 168, 132 S.W. at page 3S1; Jones v. Jones, 60 Tex. 451; Golding v. Golding (Tex.Civ.App.) 108 S.W. at page 498; Bahn v. Bahn,62 Tex. 518, 50 Am.Rep. 539; Speer on Marital Rights in Texas, at pages 371 and 672; Le Fevre v. Le Fevre (Tex.Civ.App.) 205 S.W. 842.

In the case of Golding v. Golding, supra, the court used this language:

"It is peculiarly a question for the court or jury to determine, after hearing the facts, whether or not, considering the appellant's temperament and condition, and in fact all the circumstances, appellee's treatment is of such a nature as to render their living together insupportable."

A like declaration is made in the Bahn Case just cited. In the petition here involved the plaintiff set out in much detail the facts relied upon as constituting the cruel treatment, and then, under different groups of them, concluded with the further averment that defendant "so conducted herself as to greatly insult and humiliate this plaintiff and cause him much mental suffering and distress," followed by a general charge applicable to all of the allegations, "that the conduct of the defendant as recited herein is in law such cruelty as renders the further living together of the parties wholly impossible and insupportable."

Upon the other question raised, we deem it unnecessary to undertake to here review, and thus perpetuate in the legal records of the state, the evidence which led the trial court to grant the divorce. We have very carefully examined the statement of facts and have listened to and read the arguments in behalf of both parties, and conclude that the evidence is sufficient to support enough of the material findings made to justify the granting of the divorce. In some few unessential particulars there is no supporting testimony; for instance, of that part of the fifth finding reciting that the defendant "would at times, without cause, attack plaintiff with sharp scissors and any other instruments which happened to be near at hand."

There is also, as appellant so pointedly argues, in reference to a number of the acts of the defendant, which the court found to have been committed with a certain purpose or intent upon her part, a lack of direct testimony as to the existence of such intent or purpose; but in all of these instances we have examined the record carefully and find such settings, such attending facts and circumstances, as, in our opinion, made the court's findings as to the intent or purpose with which the various acts were done legitimate inferences from what was in actual evidence. These objections, therefore, are not well taken.

Further discussion is deemed unnecessary. Under a realization that our judgment in this cause is final, we have taken pains to give it that care that its importance merits, and have reached the conclusion that we would not be justified in reversing the action of the trial court.

An affirmance must accordingly be ordered. Affirmed.

PLEASANTS, C.J., not sitting.