Spruill v. Spruill , 1880 Tex. LEXIS 176 ( 1880 )

A. S. Walker, J.

Our statutes regulating the granting of divorces require a general finding by the jury or court trying the case upon the effect upon the injured party the alleged acts of cruelty, etc., may produce.

That such finding is required shows that the terms “excesses, cruel treatment or outrages towards the other ” may have a meaning colored by the moral, mental and aesthetic nature and culture of the parties immediately interested; so as, in fact, a given act may or may not seriously affect the relations between the parties, the effect in law shall be measured by the same rule in determining whether the act renders the further living together as husband and wife insupportable.

In this case we are not informed, save by the general allegation that the wife has demeaned herself properly, that she is or is not of a coarse nature, vulgar in association in habits, so that the effect of any specified harshness of demeanor on the part of the husband would not affect her so as to invoke aid from the laws of the state. ISTor does it appear by express allegations that from her moral nature, mental culture or refinement in sentiment such conduct as detailed in the petition would of necessity have had any particularly depressing or injurious effect upon her.

We are called on in this appeal to decide that, under no testimony which could properly be admitted under the allegations in the petition, could it be shown that the effect of the alleged acts upon the plaintiff were such as, under the law, is termed “ cruelty ” or “ outrageous conduct.”

The wife’s deportment, her character and surroundings.-' would properly be investigated; whether the acts, if proven, were wanton on his part, or provoked by her treatment of him; or even, as suggested by counsel, the interchange of such epithets was of such frequent occurrence as to mean nothing but a very ordinary domestic broil.

The jury or court, from the evidence to the specific charges, and applying the acts proven to the rule of conduct between the parties, as ascertained by the proof as in fact existing, should pass upon the truth of the specific charges, and upon the actual effect they have, or are likely to have, upon the plaintiff, whether or not it be insupportable.

While great powers are given to the district judges in refusing divorces, still, upon the finding of a jury upon the plaintiff’s case, if a divorce be refused appeal will lie, and the supreme court mity reverse and render the divorce upon the verdict. Taylor v. Taylor, 18 Tex., 578.

[Opinion delivered May 17, 1880.]

Several allegations made in the petition are of acts which have been held sufficient to support evidence of cruelty. “ The studied course of insults,” etc. (Sheffield v. Sheffield, 3 Tex., 87); “ publicly charging her with taking his money ” (Nogees v. Nogees, 7 Tex., 538); the coarse and brutal charge of infidelity that she was “ a strumpet and a bitch ” (Pinkard v. Pinkard, 14 Tex., 357; Sharman v. Sharman, 18 Tex., 525, 526; Wright v. Wright, 6 Tex., 18); the cursing, etc. (Wright v. Wright, 6 Tex., 18, and cases there cited).

We have no hesitation in deciding that the allegation that defendant had called his wife a strumpet, if supported by testimony showing that it was publicly and earnestly made to a wife of virtue and delicacy, accompanied by the repeated (as alleged) declarations to her of his want of care for her, and his aggravating taunts as to her conduct, would, in many instances, render a living together insupportable. If the charges and effect were found, such injured woman would be entitled to the law’s protection in granting her a divorce.

It was error, therefore, to sustain the demurrer.

The facts alleged respecting the tract of land do not show a necessity for judicial aid outside of the proceedings for ■divorce. The same protection can be had directly under the registration laws. B. S., 4345, 4346, 4347.

For the error in sustaining the demurrer, the judgment ■below should be reversed.

Beveksed and remanded.