Melvin v. Melvin

Per Curiam:

The petition of Mrs. Melvin, on which this proceeding is based, sets forth two grounds for divorce a mensa et thoro, with alimony, viz.: (1) Cruel and barbarous treatment by her husband, endangering her life; (2) such indignities to her person as to render her condition intolerable and life burdensome, and thereby force her to withdraw from his house and family.

As to the first of these grounds, the learned judge rightly instructed the jury that the evidence was insufficient to sustain the charge of cruel and barbarous treatment. The case was therefore submitted to them on all the evidence bearing on the second charge, and the verdict for plaintiff is substantially a finding that the charge is true. It is unnecessary to refer to the evidence tending to prove the charge as set forth in the petition. Some of it is of a character too unsavory for quotation. Suffice it to say there was an abundance of evidence to warrant the jury in finding that appellant offered such indignities to the person of his wife as to render her condition intolerable and life burdensome, and thereby force her to withdraw from his house and family. It therefore follows that the verdict, and decree based thereon, should not be disturbed, unless the result was brought about by error in the rulings of the court below.

The specifications of error are nine in number. The subjects of complaint in the first three specifications are the answers to respondent’s third, fourth, and fifth points for charge. These may be dismissed by saying that, in view of the evidence, the answers complained of, respectively, were entirely proper.

The fourth specification alleges error in the portion of the general charge recited therein. We fail to discover any error in that or any other portion of the charge.

The complaint in the fifth specification is that the court failed to call attention of the jury to an alleged admission of libellant to the effect that everything necessary for her welfare and the comfort of his family had been provided by her husband, etc. It is not to be expected that the court, in charging a jury, will refer specially to all, or even to any considerable portion of the evidence; nor is it necessary that it should be done. It maybe safely assumed that the jury, who have heard the testimony and admissions of the parties, have not forgotten the same. This case was carefully submitted to the jury on all the evidence. They were instructed “ to take all the testimony from the beginning to the end of the case, and consider it with all carefulness,” etc. The specification is wholly without merit.

The sixth and seventh specifications are not according to rule and therefore are not entitled to further notice.

There was no error in permitting the libellant to amend her bill of particulars on the trial. It was a matter within the sound discretion of the court, and it does not appear that the court abused its discretion.

The final decree of divorce, as prayed for, was the logical sequence of the facts established by the verdict. Without disregarding the verdict, and ignoring the charge established by it, the court could not do otherwise than enter the decree complained of by appellant.

Decree affirmed; and it is further ordered that appellant pay the costs of this appeal, and also pay to appellee $100 for counsel fees, and expenses connected therewith.