Brown v. Brown
| Decision Date | 28 March 1929 |
| Docket Number | 8 Div. 46. |
| Citation | 121 So. 386,219 Ala. 104 |
| Parties | BROWN v. BROWN. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Morgan County; James E. Horton, Judge.
Bill for divorce by Estelle Brown against E. M. Brown. From a decree overruling a demurrer to the bill, respondent appeals. Affirmed.
S. A Lynne, of Decatur, for appellant.
Wright & McAfee, of Decatur, for appellee.
Appellee's bill for divorce sufficiently stated the grounds upon which she relied, viz., habitual drunkenness and cruelty; that is actual violence on her person attended with danger to her life or health.
In McMahon v. McMahon, 170 Ala. 338, 54 So. 165, the identical averment as to drunkenness was sustained as sufficient. No harm will come from following that precedent. Nor are we able to say as matter of law that when appellee came to the statement of her case for alimony she refuted her averment of habitual drunkenness by her later averment that defendant was an able-bodied man, making about $150 a month. A person, to bring himself within the definition of "habitual drunkard," need not be constantly drunk every day or every week. State v. Savage, 89 Ala. 1, 7 So. 183, 7 L. R. A. 426. To quote the language of Stone, C.J., in the cited case: "When a person has repeatedly acted in a particular way, at intervals, whether regular or irregular, for such length of time as that we can predicate" (predict?) "with reasonable assurance that he will continue so to act, we may affirm that this is his habit." Habit of the sort here under consideration means an aptitude or inclination to drunkenness, a state in which the use of the faculties is materially impaired. Webster. In view of these definitions, we are unable to affirm as matter of law that appellant's earning of $150 a month conclusively rebuts the averment of habitual drunkenness. That is a matter to be determined upon consideration of the evidence. So far as allegation goes, the bill in this respect should be sustained.
As for the charge of cruelty, the bill sufficiently informed appellant, defendant, of the nature and character of the offense which appellee expected to prove. Time, place, and the act of violence complained of are so alleged as to inform appellant of the case he might prepare to meet. Smedley v. Smedley, 30 Ala. 714.
Fault is found with the bill on the ground that it shows that after the violence complained of appellee continued to live with appellant for a considerable period of time viz., from September 15th to October 31st...
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Russell v. Russell
...There was never any intention on the part of the appellee to forgive the appellant or to resume cohabitation with him. In Brown v. Brown, 219 Ala. 104, 121 So. 386, 387, this court condonation as 'the willing continuance of cohabitation, a living together in the same place.' See also Harbin......
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Roberts v. Roberts
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Harrison v. Harrison, 4 Div. 254
...that the husband struck the wife on several occasions, the evidence also shows a condonation of such conduct. See: Brown v. Brown, 219 Ala. 104, 105, 121 So. 386, 387, where 'condonation' is defined as '* * * 'Condonation' in the respect here involved means the willing continuance of cohabi......
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Russell v. Russell
...but must have continued until 'at or near the time of filing the bill.' McMahon v. McMahon, 170 Ala. 338, 54 So. 165; Brown v. Brown, 219 Ala. 104, 121 So. 386; Howell v. Howell, 211 Ala. 415, 100 So. The bill is not sufficient in this respect, and was subject to the demurrer interposed. It......