Clough v. Clough, 49226

• Decision Date: 26 June 1957
• Docket Number: No. 49226,49226
• Citation: 248 Iowa 1090,84 N.W.2d 16
• Parties: Valera M. CLOUGH, Appellant, v. G. Herbert CLOUGH, Appellee.
• Court: Iowa Supreme Court

Page 16

84 N.W.2d 16

248 Iowa 1090

Valera M. CLOUGH, Appellant, v. G. Herbert CLOUGH, Appellee.

No. 49226.

Supreme Court of Iowa.

June 26, 1957.

Clough & Clough, Mason City, for appellant.

Boyle & Schuler, Clear Lake, for appellee.

THOMPSON, Justice.

The plaintiff's case is bottomed upon that part of our divorce laws found in section 598.8, subsection 5, of the Code of 1954, I.C.A. We quote the applicable section and subsection herewith:

'598.8 Causes

'Divorces from the bonds of matrimony may be decreed against the husband for the following causes: * * *

'5. When he is guilty of such inhuman treatment as to endanger the life of his wife.'

I. This exact language in our divorce statutes is found in the Code of 1851 and has been a part of our law at all times since, with the exception of the period from January 24, 1855, to March 15, 1858. During all this time a tide of controversy has swirled around it. Few statutes have been the center of so much litigation; and to this date the courts are constantly concerned with disputes as to its application to particular facts that arise in marital relations. It is probable, as we said in Hylarides v. Hylarides, 247 Iowa 841, 842, 76 N.W.2d 779, that the language was 'originally intended to be strictly construed to mean conduct threatening immediate violent extinction.' But we long ago departed from that exact concept; and in so doing we opened a vast field for controversy. Many years ago this court committed itself to the interpretation that inhuman treatment such as to endanger life might arise without physical violence. Hylarides v. Hylarides, supra, at page 847 of 247 Iowa, at page 782 of 76 N.W.2d, and cases cited. This interpretation is sound; but it is evident, and is demonstrated by the multitude of cases which have arisen under it, that the way so opened is a wide one and distinctly lacking in guide posts or direction signs.

All this is but another way of saying that each case which is thought to come within the terms of the statute must depend upon its own facts. Wilson v. Wilson, 246 Iowa 792, 795, 68 N.W.2d 904; Fisher v. Fisher, 243 Iowa 823, 827, 53 N.W.2d 762. The burden is upon the plaintiff to establish her case--that is, to show such inhuman treatment as endangered her life, by a preponderance of the evidence. Record v. Record, 244 Iowa 743, 749, 57 N.W.2d 911; Murray v. Murray, 244 Iowa 548, 550, 57 N.W.2d 234. These are propositions thoroughly established in Iowa and are not in dispute here. Nor is there any doubt that divorce, under our law, is strictly statutory. Record v. Record, supra, at page 746 of 244 Iowa, at page 912 of 57 N.W.2d, and cases cited.

II. It is not claimed in the case at bar that there was any serious physical violence, as the term is commonly understood. But the plaintiff thinks the record shows such inhuman treatment as to endanger her life, because of these matters, which we quote from her brief: '1, Appellee is guilty of sexual peculiarities or perversion. 2, Appellee encouraged his wife to go out socially with other men. 3, Appellee forced upon his wife the reading of literature on sex perversion. 4, Appellee has demonstrated unfitness as a father. 5, Appellee has tried to make a narcotic invalid of his wife. 6, Appellee is personally unclean. 7, Appellee has tried to regiment unnecessarily the life of his wife.' We shall consider these as stated. The trial court was of the opinion that plaintiff had failed to prove by a preponderance of the evidence that any of these grounds, or all of them combined, totalled inhuman treatment which endangered the plaintiff's life.

The parties were married at Kirksville, Missouri, on December 22, 1940, at which time plaintiff was about 20 years of age and defendant 31. Each had been married and divorced once before. The defendant was at the time an osteopathic physician and was on the teaching staff of the Kirksville College of Osteopathy. They resided in Kirksville about four years, when they removed to Clear Lake, Iowa, and defendant has since been engaged there in the practice of his profession. Four children were born to them. Two children were born while they lived at Kirksville: Naila and George. After they removed to Clear Lake two more daughters, Fara and Valeta Mae, were born. The only son, George, lived only a few years; so that at the time of the separation in 1955 and of the trial of this cause the three daughters were the only living children. The defendant seems to have been successful in his practice. At Clear Lake he became associated with an osteopathic clinic, and has continued to practice his profession.

III. The first ground of plaintiff's complaint is based upon her contention that the defendant was guilty of repeated acts of masturbation. Fortunately we are spared the necessity of analyzing the evidence upon this question. We think the plaintiff is not in a position to urge it as a ground for divorce. She testifies: 'Before Dr. Clough married me he told me he practiced masturbation. I knew that.' The defendant also testifies to the same effect. The rule is thus stated in 27 C.J.S. Divorce § 58, p. 607-608: 'Knowledge by complaint of the cause for divorce at the time the marriage was contracted is a bar to the suit.' In Williamson v. Williamson, 212 Ark. 12, 204 S.W.2d 785, 787, the Arkansas Supreme Court stated the principle in these words:

'* * * it is obvious that before the remarriage Mrs. Williamson was well aware of Mr. Williamson's bad habits. He continued to be guilty of indignities, cruelty and drunkenness after they remarried, but she cannot use these acts as grounds for divorce, because she knew of them in advance.'

To the same effect are Kincaid v. Kincaid, 207 Miss. 692, 43 So.2d 108, 109, 15 A.L.R.2d 667; Rankin v. Rankin, Mo.App., 17 S.W.2d 381, 391; Caswell v. Caswell, 64 Vt. 557, 24 A. 988, 33 Am.St.Rep. 943; Amis on Divorce, section 158.

We have ourselves recognized the rule in Wilson v. Wilson, supra, 246 Iowa 792, 798, 68 N.W.2d 904, 907, where we said:

'While habitual drunkenness also may be material evidence of inhuman treatment, it is also true that one who marries another who is a habitual drunkard with knowledge of that fact assumes the risk.'

Much of the record and of plaintiff's brief and argument are taken up with the unpleasant relation of defendant's sexual aberrations in the respect above stated; but she was fully informed about this habit before marriage and cannot now complain.

IV. We turn next to the fifth statement of the matters which plaintiff believes entitle her to a divorce. This concerns the alleged attempts of the defendant to 'make a narcotic invalid' of her. It appears that plaintiff for some years suffered considerable pain at times from two causes: cramps during her menstrual period, and severe migraine headaches. At such times the defendant, acting as her physician, resorted to morphine injections. After some years of these treatments, plaintiff was taken to the Wilden Clinic in Des Moines, where she testified she was told she showed symptoms of withdrawal; that is, of becoming a narcotic addict. Even after that, she says, the defendant on occasion gave her injections. It is the defendant's testimony that he did not give her sufficient dosages long enough continued to make her an addict; and in this he is corroborated to some extent by Dr. J. J. Henderson, another osteopathic physician who was associated in the clinic at Clear Lake with the defendant.

Of course, a deliberate attempt by the defendant to make his wife a slave to the use of narcotics would be inhuman treatment of the lowest degree, and it would certainly endanger her life. But we are unable to say from the record that he had such an intention. It is admitted that he gave the morphine usually when the plaintiff was in severe pain, although it is contended there were other occasions. Some doubt apparently existed in the minds of appellant's counsel as to whether the claimed overdosage was deliberate or merely negligent miscalculation. We quote from plaintiff's brief and argument: 'Whether by accident, by negligence or by wilfullness (sic) the appellant was doubtless brought close to or over the borderline of being a narcotic addict * * *.' It is true that at other points counsel seem to urge that there was an element of willfulness in the administering of the morphine, which was at times supplemented or replaced by barbiturates. But we share the doubt expressed above; that is to say, we think that the record fails to show by the greater weight of the evidence that, if too much morphine was administered, it was done with intent rather than by mistake.

Not all inhuman treatment endangers life; and it is also true that not all acts of one spouse which endanger the life of the other are inhuman. In the latter category come accidents and inadvertences, even unintentional negligences. The husband who drives the family automobile negligently and so endangers the life of his wife is not necessarily inhuman within the meaning of our statute. So here, if the defendant merely miscalculated the proper amount which the plaintiff could tolerate without becoming an addict, we cannot say he was acting inhumanly in the manner contemplated by our divorce law. Upon occasion a well-meaning friend does more harm than might be contrived by a malicious enemy; yet we cannot condemn his actions as inhuman. There is some evidence that the defendant was somewhat too free in administering morphine; but we are unable to say that in so doing he was acting intentionally or was guilty of more than a medical miscalculation. Our statute requires that one claiming a divorce under subsection 5, Code section 598.8, show that there was first, inhuman treatment, and second, that it was such as to endanger life. It is not sufficient to prove either of these elements without the other. 'Inhuman', as used in the statute, has a connotation of intent or wilfulness, or at...