Burt v. Burt

• Decision Date: 30 March 1897
• Citation: 168 Mass. 204,46 N.E. 622
• Parties: BURT v. BURT (three cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

168 Mass. 204

46 N.E. 622

BURT v. BURT (three cases).

Supreme Judicial Court of Massachusetts, Suffolk.

March 30, 1897

COUNSEL

Chas W. Bartlett and Elbridge R. Anderson, for Frank L. Burt.

F.E.H Gary, for Ida L. Burt.

OPINION

LATHROP J.

The libel in the first case is brought under St.1889, c. 447 which was approved on June 7, 1889, and under Pub.St. c. 3, § 1, took effect on the thirtieth day next after the day of approval. It reads as follows: "A divorce from the bond of matrimony may be decreed for gross and confirmed drunkenness caused by the voluntary and excessive use of opium or other drugs." This act was probably passed to supplement the provision in Pub.St. c. 146, § 1, where, among other causes of divorce, is mentioned "gross and confirmed habits of intoxication." It was held in Com. v. Whitney, 11 Cush. 477, that evidence of habitual intoxication from the use of chloroform would not sustain a complaint under Rev.St. c. 143, § 5, charging a person with being a common drunkard. So, too, the term "habitual intemperance" in the divorce law of Connecticut (Barber v. Barber, 14 Law Rep. 375) and the term "habitual drunkenness" in the divorce law of Missouri, have been held not to apply to the effect caused by opiates. Dawson v. Dawson, 23 Mo.App. 169.

A question of evidence may first be considered. Certain witnesses, some medical, and others not, but who have been with the libelee for a long period of time, and were familiar with her habits as to the use of morphine, and its effect upon her, were allowed to state that, in their opinion, at various times when they saw her she was under the influence of morphine. We see no reason why this exception should not be overruled. The cases relied on by the counsel for the libelee differ widely from case at bar. In Batchelder v. Batchelder, 14 N.H. 380, and in Golding v. Golding, 6 Mo.App. 602, it was held that witnesses could not testify in general terms that a man was an habitual drunkard, because this was the very point which the court was to decide, and their testimony must be limited to a statement of the facts observed. In the case at bar the witnesses were not asked whether the libelee was a gross and confirmed drunkard owing to the use of opium or other drugs, but were asked whether at certain times she was under the influence of morphine. It must be assumed that the medical men were qualified as experts, as nothing appears to the contrary, except the statement in the bill of exceptions that the libelee objected on the ground that they were not qualified to testify as experts. Nothing appears in the exceptions to support this objection. As to the witnesses who were not medical men, as it appears that they had been with the libelee for a long time, and were familiar with her habits, and the effect of morphine upon her, there is no reason why they should not have been permitted to state their opinion as to whether she was under the influence of morphine at particular times. Whether a person is drunk is a question which a person not an expert is competent to answer, as this is something which may fairly be considered to be a matter of common knowledge and observation. People v. Eastwood, 14 N.Y. 562; State v. Huxford, 47 Iowa, 16. While this does not wholly apply to a case of drunkenness produced by drugs, yet, if a person has seen many times a certain condition resulting from the use of a certain drug, there can be no objection to his giving his opinion, when he finds the same condition existing, that it is caused by the same drug.

The principal question in the case is whether the judge was justified in entering a decree nisi, on his findings of fact in favor of the libelant. Under the terms of the statute, there must not only be a use of morphine, but this use must be excessive, and must cause gross and confirmed drunkenness. Precisely what the legislature intended by the word "drunkenness" in this connection we do not know, but we assume either that morphine produces a state of exhilaration and subsequent coma similar to that produced by the excessive use of alcoholic liquors, or that it produces other deplorable effects as detrimental to the marriage relation as those caused by alcoholic liquors. The parties to the case were married on September 22, 1885, and lived together in Boston until August 20, 1892, when the libelee left her home and went to Concord Junction, where she has since...