Harman v. Harman , 139 Va. 508 ( 1924 )

Sims, P.,

after making the foregoing statement, delivered the following opinion of the court:

The defendants, who deny the dower right of the plaintiff sought to be enforced by the bill in this cause, rely upon the statute (section 5123 of the Code), as applicable to the evidence in the cause, to support the decree under review. That statute is as follows:

“Dower barred by. adultery of wife. — If a wife, of he own free will, leave her husband and live in adultery, she shall be barred of her dower, unless her husband be afterwards reconciled to her, and suffer her to live with him.”

Our view of the proper construction of this statute is that, before a widow can be barred of her dower in her husband’s estate thereunder, it must be proven, (a) that the wife of her own free will, i. e., voluntarily, deserted her husband, and (b) that afterwards, when requested by him so to do, she refused to return to him, without just cause for such refusal.

This statute, while somewhat different in its precise phraseology, is held, by all of the authorities on the subject, to be the same in meaning as the English statute, Westm. 11, 13 Edw. 1, chapter 34; and such authorities are uniform in the holding that the construction thereof just stated is the proper and correct construction. Reel v. Elder, 62 Penn. St. 316, 1 Am. Rep. 414; Shaffer v. Richardson’s Adm’r, 27 Ind. 122; Cogswell v. Tibbetts, 3 N. H. 41; Bell v. Nealy, 1 Bailey (S. C.) 312, 19 Am. Dec. 686. And it is also uniformly held that voluntary separation or departure of the wife from the husband and voluntary remaining away from him thereafter, “as well as adultery, is necessary to make the bar (of the statute) complete.” Reel v. Elder, supra.

That such is the proper construction of the statute is not only not controverted in argument before us, but is concurred in by counsel on both sides of the case.

It follows from this that the mere facts that the wife leaves the home and that her husband remains there do not make the statute applicable. If the leaving of the home by the wife is caused by such conduct on the part of the husband that the husband is guilty of constructive desertion of the wife — certainly where such constructive desertion consists of actual, physical, cruelty on the part of the husband, in such a degree as to cause the wife to leave and justify her in leaving the home to protect herself therefrom — it is not a voluntary leaving — it is not a leaving of the husband “of her own free will” within the meaning of the statute.

It is true, however, that, although the leaving of the husband by the wife may have been caused by the cruelty of the husband, yet, if afterwards he requests his wife to return, and at the time of such request, or requests, reasonable ground for fear on the part of the wife of recurring cruelty to her on the part of the husband, if she should return to the home and again live with him there in the marriage relationship, no longer exists, and she, for some other cause, which would not have been a legal excuse for her original leaving, refuses to return, the statute is applicable. In such case, the wife voluntarily refuses to return to the home after all legal ground for the separation on her part is at an end; which, in law, constitutes desertion on her part, as of the time of such voluntary refusal to return and resume the marital relationship. Bell v. Nealy, supra; 1 Bailey (S. C.) 312, 19 Am. Dec. 686; 1 Minor on Real Prop., sec. 306.

In Bell v. Nealy, supra, the original leaving of the husband by the wife was caused by his cruelty; but the refusal of the wife afterwards to return to him, when he requested her so to do, was not from any fear on her part that he would continue to be cruel to her if she did so, but for the sole reason, as she stated, when he frequently solicited her to return and live with him, “* * that she never liked him.” The presiding trial judge, in such case, held that “it was clear, on authority, that although her departure had been compulsory, if she voluntarily remain with her adulterer, when the husband is ■willing to take her back, she is barred by the statute;” and on this ground applied the statute in bar of the wife’s right of dower. The appellate court affirmed the case, saying: “The court concurs with the presiding judge, for the reasons he has given on all the questions he has discussed.”

Such being the law, we have no occasion to consider whether or not the court below erred in the holdings of fact that the plaintiff, after her final leaving of the home of the husband, “thereafter lived in adultery,” and that the husband “was never reconciled to her.” Since the voluntary separation in the first instance and the voluntary continuance of the separation thereafter on the •part of the wife, as well as the living in adultery, are .necessary to complete the bar of dower under the statute, we need consider only whether the preponderance of the evidence sustains the decree under review upon the issues presented by the following question, namely:

1. Did the wife, of her own free will, desert the husband, and afterwards, when requested by him so to do, refuse to return to him, without just cause for such refusal?

We are of opinion that the preponderance of the evidence in the cause does not sustain an affirmative answer to this question. On the contrary, we are of the •opinion that the preponderance of the evidence clearly ■answers such question in the negative.

The testimony of the plaintiff on these issues of .-fact is circumstantial, positive, consistent, clear and convincing in its character. And she is expressly corroborated by five other witnesses, with respect to the .most material circumstances which tend to show that she was forced, as she testified she was, to finally and •permanently leave the home of her husband by his cruelty to her on his frequently recurring drunken sprees, •culminating in the extreme cruelty of conduct on the occasion of her final departure from the home, to which ;she testified; and that she afterwards refused to return to the home because of the fear that she would be subjected to the repetition of cruelty of treatment by the husband if she did return; and that such fear was a reasonable fear under the circumstances. The testimony is indeed uncontroverted to the effect that the drunken sprees of the husband were very frequent and continued during the whole period after his marriage until his-death; that when the husband was on his drunken sprees he was a quarrelsome, disorderly and dangerous-man; and that his repeated and great cruelty to his wife-while on such sprees finally caused her to leave his home- and to thereafter remain away to shield herself from bodily harm from him which she reasonably apprehended.

There is really nothing in the testimony of and for the-two defendants, who endeavor to maintain the affirmative of the question under consideration, when the manifestly disingenuous character of that testimony is considered, to controvert the fact that when on his drunken sprees the husband was guilty of the numerous acts of cruelty, which the wife testified finally forced her to permanently leave the home of her husband, or to controvert the truth of her testimony to the effect that she-had reasonable ground to fear that she would be cruelly treated by her husband if she returned to him, as he requested, and that she, for that reason alone, refused toafterwards return to-him. None of the testimony of and for such defendants even attempts to controvert the-testimony of and for the plaintiff on the subject of what-, was the conduct of the husband towards the wife prior to her final leaving of his home, or what might reasonably have been expected would have been his conduct towards her had she afterwards complied with his request for her return to his home, and had she attempted to again live with him there in the marriage relationship, when the husband was'on his drunken sprees. The-, testimony of and for the two defendants mentioned carefully avoids dealing in any detail with the times of such drunken sprees; except that, for example, Robert-F. Harman, in answer to the general question as to whether, while the husband and wife lived together, the husband “was affectionate,” says that “he was a little disagreeable when he was drinking.” He does not explain what he considered “alittle disagreeable;” nor does he, or any witness for these defendants, testify on the subject of what was the conduct of the husband towards the wife when he was drunk. Indeed, the very character of the answers of these witnesses on the subject of the conduct of the husband towards the wife shows that they do not undertake to deny that he was cruel to her when drunk. To illustrate: C. E. Harman had abundant opportunity to know that the explanations given by the plaintiff in her testimony of the cause of her leaving the home, as she testified, were untrue, if they were untrue, and he confines his testimony on this subject to the bare statement of the undisputed facts that ■she left the home “several times;” that the husband would go after her (sic., when he got sober, but the witness is not frank enough to say so); and that she was ■away a considerable time on some of these occasions; and he says not a word to negative the fact that she was ■driven away at those very times by the extreme cruelty of the husband when drunk. He says that the husband was affectionate towards, and almost worshipped his wife; which is not disputed — having reference to the "times when he was sober; and says not one word of the •attitude of the husband towards the wife when he was not sober! And his answer to the following question, ■on his examination in chief, illustrates the character of the testimony of this witness:

“Q. Please state, on the various occasions during the last ten years that Peel Harman and his wife lived together, when she would leave home 'at periods and remain away from home, and when later Peel would go for her and she would return home, she ever stated any reasonable cause for leaving or not, or about what explanation would she give for her conduct?

“A. Well, now; I don’t know whether I could say that-I know that.”

Such an answer, from this witness, acquainted as he-must have been with the facts, is, by its very silence, convincing in its confirmation of the truth of the testimony of the wife. Further: The testimony of the-plaintiff and of her chief witnesses was so circumstantial that it would have been easy to have produced witnesses-to contradict their statements of fact, if untrue. And, yet, after the testimony of and for the plaintiff was taken, no deposition of a single witness was taken in behalf of the defendants even attempting to contradict-the aforesaid testimony of and for the plaintiff.

Moreover, in one of the two letters of the husband,, written on May 21, 1919, shortly after the final departure of the wife from Ms home on the occasion of the shooting of the son Hallett, etc., we find unmistakable-confirmation by the husband himself of the wife’s testimony to the effect that that departure was due to the-cruelty of the husband’s conduct towards her which culminated on that occasion. In that letter he says this:: “* * I had been in good hopes of us getting along all right until Hallett come and raised his row. Well; he is-sorry about it, just as sorry as I am about our trouble. * * I do not feel that I mistreated you, but, nevertheless, if you feel that way, I ask your forgiveness for-any and all wrongs that I have done you. * * ” Why-mention mistreatment, if it had no existence, except in the wife’s statement, or wrongs to the wife if no wrong-was done her? It is evident from this that the husband was informed as sóon as he sobered up what his wife then claimed, ante motern litem, was his conduct on the oc— casion of her finally leaving the home — that being the same conduct to which the wife has testified in this case. Such evidence, from its very nature, is of the most convincing character. That he did not feel that he had mistreated his wife is easily explained by the fact that he naturally lacked recollection of his conduct while drunk.

And the other of the two letters just mentioned also tends strongly to corroborate the testimony of the plaintiff, in that it shows that a degree of estrangement existed between the husband and wife following her final departure from the home, which is to be accounted for only by the inference that the wife’s testimony concerning the cause of that departure is true.

That many of the acts of cruelty of the husband occurred a long time before the final departure of the-wife, and that the wife returned and cohabited with the husband after all of them, except those which were inflicted upon her at the time of her final departure from the home, does not render the evidence of such repeated conduct any the less cogent in establishing the fact that such last departure of the wife from the home was not of her own free.will.

In Owens v. Owens, 96 Va. 191, at p. 195, 31 S. E. 72, 74, this is said: “Cruelty * * is cumulative* admitting of degrees and augmenting by addition; so that it may be condoned and even forgiven for a time* and up to a certain point, without any bar in sense or reason to bring it forward when the continuance of it has rendered it no longer condenable. While, therefore, acts of violence committed at an earlier period, and which have not prevented the wife from living with her husband, or going back to him after they have been separated, cannot be made the sole foundation of an action of separation, they form the subject of investigation and proof, with a view to determine what is the true issue in the ease, namely, whether the wife can, with safety to her person and health, continue to live with him. 2 Bishop on Marriage and Divorce, section 304.

“Cruelty consists of successive acts of ill treatment,if not of personal injury; so that something of condonement of earlier ill treatment must in such eases necessarily take place. Section 305.” See also Elder v. Elder, ante, p. 19, 123 S. E. 369.

The decree under review will be reversed, and the cause will be remanded for further proceedings, not in conflict with the views expressed in this opinion.

Reversed and remanded.