20 Mich. 34 (Mich. 1870), Briggs v. Briggs

Citation:20 Mich. 34
Opinion Judge:Cooley, J.
Party Name:Jane Briggs v. Russell Briggs
Attorney:Norris & Uhl, for complainant. H. J. Beakes, for defendant.
Case Date:January 10, 1870
Court:Supreme Court of Michigan

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20 Mich. 34 (Mich. 1870)

Jane Briggs

v.

Russell Briggs

Supreme Court of Michigan

January 10, 1870

Heard January 6, 1870

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[Syllabus Material]

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Appeal in Chancery from Washtenaw Circuit.

The complainant filed her bill against her husband for a divorce on the ground of cruelty. The defendant answered; and issue was joined by the filing of a replication. An order was entered closing proofs; and the cause stood for hearing on bill, answer and replication. At this state of it, the complainant filed a petition, duly verified, for leave to amend her bill by inserting an additional specification of cruelty, of the facts in support of which, she avers, that she had no certain knowledge, until after the filing of the bill and answer in the cause. The Court granted leave to amend; the defendant answered, and on the issue as joined upon the amended bill and answer; the proofs were taken and the cause brought to a hearing. The Court below dismissed the bill; and the complainant appeals to this Court.

Decree of the court reversed, and a decree entered dissolving the bonds of matrimony in accordance with the prayer of the bill, and adjudging the custody of the daughter of the parties to the complaint. Cause remanded.

Norris & Uhl, for complainant.

I. On the part of the complainant it is contended that the charges in the bill are sufficient; that there is no demurrer to any part of the bill, no objection to any of the testimony because of a want of more specific charges. There are some acts of cruelty proven not specially charged, but their character is so far indicated as to prevent any surprise on the defendant, and they may be proven. Story's Eq. Pl. §§ 28, 252; 3 Greenleaf's Ev. § 356; 6 John. Ch. R. 351; Edw. Ch. R. 14. And all such acts may in any state of the pleadings be proven, by way of inducement--throwing light on the conduct of the parties. Greenleaf's Ev. § 357.

II. Some considerable portion of the complainant's case may rest upon the admissions of the defendant, not alone, but supported by other testimony looking in the same direction, and under circumstances clearly showing no collusion. As to the force of such testimony the Court will note the following authorities: Bishop on Marriage and Divorce, §§ 309, 310; Sawyer v. Sawyer, Walk. Ch. R. 50; 1 Greenleaf's Ev. §§ 201, 218; 3 1b. § 376.

III. What is the "extreme cruelty" of the statute? It is partly defined there in the expression, "whether practiced by using personal violence, or by any other means." Comp. L., § 3228. Its further limitations are fully given in general treatises. Bishop on Marriage and Divorce, §§ 454, 462, 463, 469, 471, 477, 479.

"Our statutes do not confine such cruelty to mere physical violence, which is by no means the worst injury that can be inflicted on persons of refined sensibility, but the grievance of whatever kind must be of the most aggravated nature to justify a divorce." Cooper v. Cooper, 17 Mich. 210. It need not be blows. Bishop, §§ 729, 730. Ill treatment of child. Ib. § 735. One act may be sufficient. Ib. §§ 744, 747. If it threaten bodily harm. Ib. § 748.

H. J. Beakes, for defendant.

I. The amendment ought not to have been allowed. 1. The Court had no power to make a new case by amendment. People v. Washtenaw Judges, 1 Doug. 434; People v. Wayne Circuit Court, 13 Mich. 206. These were cases at law, but the same rule prevails in chancery. 4 Paige 538, 541; 1 Edwards 46, 52; 14 Peters 156; 1 Barbour's Ch. Prac., 207; 2 Barb. Ch. Prac., 395, 2. If the amendment would have been otherwise proper the application was made too late, "After publication passed and the bill has been set down for hearing, the bill can be amended in no other respect than by making parties." 1 Daniel Ch. Prac., 474 (marginal page 459.) "And when parties are added after publication passed, the cause, as to such parties, must be heard on bill and answer only." 1 Daniel Ch. Prac., 494 (marginal 478). 3. The amendment should have been applied for as soon as the alleged fact was discovered. 1 Paige 424; 2 Paige 67.

II. No divorce should be granted unless the specific acts of cruelty charged in the bill have been proved, nor unless those acts as charged and proved are sufficient, even if the Court should be of opinion that the testimony would have authorized other charges. (Cases cited in section 1242 of Cooley's Digest). The general charge amounts to nothing more than a summary of the specifications alleged.

Bishop says "it is probably everywhere true with us (except in Vermont), that to allege cruelty in general terms and in the mere words of the statute is not sufficient; the the facts must with greater or less minuteness be set out." 2 Bishop, Mar. and Div. § 651, and cases there cited. see also §§ 649, 650.

If the general conduct of the parties aside from the specific acts charged in the bill be admissible for any purpose, it is only to enable the Court to understand more fully the specific acts complained of as circumstances in aggravation or extension. 2 Bishop Mar. and Div. § 657 (marginal p. 497), 658 and cases cited.

OPINION

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Cooley, J.

The bill of complaint in this cause was filed September 29, 1866, for the purpose of procuring a divorce from the bonds of matrimony on the ground of extreme cruelty.

The marriage took place in Skaneateles, N. Y., where complainant then resided, in October, 1843. The defendant, at the time lived at Saline, Michigan, where he had children by a former marriage, and to which place he at once brought his wife. The defendant was then thirty-eight years of age, or thereabouts, and the complainant thirty-three. So far as we are able to judge from the record, the marriage was an uncomfortable one from the outset. The defendant has taken testimony to show that when his wife reached his place at Saline, she at first refused to leave the stage, and gave indications of disappointment and dissatisfaction. A few months after the marriage, for reasons into which we get very faint insight, she left him, and went to a

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neighbor's, apparently with the intention of not returning, but was subsequently induced to return on his solicitation, and on his promise to treat her better. Somewhat later, visits made by her to her former home appear to have caused more or less difficulty and dispute between the parties. When she was at home, the record would indicate that the parties lived very much apart from the rest of the world, neither going aboard much, nor having many visitors, and there was little opportunity for either to make proof of the exact state of their relations. So far as we have evidence, it seems to indicate that he was harsh, tyrannical, and overbearing towards his family, penurious in his provision for their comforts, and coarse, profane and obscene in his language. A daughter was born to the parties in 1851, but this does not seem to have improved their relations. Soon after the birth of the daughter, if not before both parties seem to have been somewhat afflicted with disease, the precise nature of which the evidence does not satisfactorily disclose, but which appears to have left both with shattered constitutions. The defendant puts in evidence to show that when the daughter was about two years of age, his wife, who had previously been sleeping apart from him, refused to share his bed, and advised him with evident ill humor, to go abroad for the satisfaction of his desires. It is impossible to fully understand this transaction, without some knowledge of the secret cause of dissatisfaction then existing between the parties, but as no other evidence appears in the case from which an inference of want of modesty is to be drawn against the complainant, her language on this occasion appears to us to be the petulant exclamation of a wife, who suspected the condition of defendant to be the result of previous unlawful indulgence, rather than an exhibition of mere caprice, or of causeless ill humor. The state of things between the parties did not improve from this time on, and at length the present bill was filed.

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The original bill contained general charges of long continued ill treatment, and also specified:

1. That in the summer of 1864, he said he would kill her if he could get her; that he then took up a stick of wood...

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