Ducros v. Ducros

• Decision Date: 27 June 1924
• Docket Number: 26558
• Citation: 101 So. 407,156 La. 1033
• Court: Louisiana Supreme Court
• Parties: DUCROS v. DUCROS

101 So. 407

156 La. 1033

DUCROS v. DUCROS

No. 26558

Supreme Court of Louisiana

June 27, 1924

Rehearing Denied by the Whole Court September 25, 1924

Appeal from Civil District Court, Parish of Orleans; Hugh C. Cage Judge.

Suit by Ruth Seawell Ducros against Robert Ducros. Judgment for plaintiff, and defendant appeals.

Judgment annulled and rendered.

Sanders Baldwin, Viosca & Haspel, of New Orleans, for appellant.

Woodville & Woodville, of New Orleans, for appellee.

OPINION

OVERTON, J.

Plaintiff alleges that her husband, the defendant herein, treats her with such cruelty and that his conduct towards her is so outrageous as to render their living together insupportable; and hence she sues him for a separation from bed and board, and for the care and custody of their only child, a daughter, who at the time of the institution of this suit was about two and a half years of age.

Plaintiff alleges with particularity the various acts of her husband which she contends constitute the cruel and the outrageous conduct alleged by her. These grounds are: That plaintiff shamefully neglects her; that he goes out every night without letting her know where he is; that he goes sometimes for three months without taking any of his meals at home; that he has cursed and abused her most shamefully without cause or reason; that he has time and again told her that he does not love her, and has told her and her aunt that he is living with her only because of their child; that he sometimes permits months to pass without speaking to her or bidding her good morning; that although he is in the enjoyment of a lucrative business he has not for years given her any money at all, forcing her to teach school to secure money for her personal want, and has provided her only with shelter, food, and clothing; that he has forced her to give him a detailed statement of every penny spent by her, for the purpose of humiliating her; that he has never taken her out to places of entertainment although he knew that she was anxious to go to them; that prior to her marriage she saved $ 1,000 out of her earnings as a school-teacher; that he used this money without her consent to make the first payment on their home, according to his statement to her; that about two weeks before the institution of this suit, on returning home at about 2:30 in the morning, as was his custom, and on finding the door locked he kicked out a pane of glass, broke the door open, thereby arousing the neighbors, to her great pain and humiliation; and that his cruelties and outrages toward her finally culminated on Sunday, September 23, 1923, in his cursing and abusing her in his office, at about 10 p. m., threatening to strike her, throwing her against his desk, refusing to take her home, and forcing her to call a taxicab, all for no reason whatever.

Separation from bed and board may be claimed by either spouse for cruel treatment or outrages of one of the spouses towards the other, if such ill treatment is of such a nature as to render their living together insupportable. Civil Code, art. 138. If plaintiff has proven all of the outrages and various acts of cruelty, of which she alleges that her husband has been guilty in his conduct towards her, then, unquestionably, she has established a case entitling her to the relief for which she prays; but in our view the petition overstates the case against defendant, and when his version of it is taken into account, although it still appears that the conditions under which plaintiff lives are not ideal, yet it also appears that she is not entitled to the relief for which she prays.

In order to fully understand and appreciate the case, it is necessary to take into consideration the exacting conditions of defendant's business. It is due to those conditions, we think, that the trouble between plaintiff and defendant has arisen, and to the fact that plaintiff has failed to appreciate them, and instead has constantly taken a position which, had defendant acceded to, would have resulted in his seriously neglecting his business.

Defendant and two of his brothers organized the Southern Tile Company, or at least were the stockholders and officers of that company. The business at first lost money, or was losing it, when the three brothers assumed charge of it, but between June, 1920, when plaintiff and defendant were married, and January, 1923, the time of the trial of this suit, the business increased 100 per cent., and was earning for the three brothers sufficient to afford them a good living, and to enable the corporation to put aside something as surplus, but in order to put the business on a paying basis, and to enable the brothers to live out of the earnings of it, it was necessary for the business to be operated with the same force, or virtually the same, as that with which it was operated in the beginning. This placed considerable work on the three brothers.

Defendant's duties in connection with the business as appears from an answer to a question propounded to him during the trial, were as follows:

"I take care of installations, and every once in a while I take care of some estimating, and a good portion of our work is preparatory work for installations, routing of men, listing material, and loading the trucks, so the men will not lose time waiting for material on the jobs."

During the daytime, it appears that defendant's duties took him from one job to another, and that he had possibly from a dozen to as high as twenty-seven places to visit daily, in different parts of the city, and that he endeavored to return to his office between 4 and 5 o'clock in the afternoon, though he did not always succeed in returning that early. After reaching the office he had to route the men and list the material for the next day, for, unless he did so, the result would have been the stopping of the work. As a result of the nature of defendant's work, he was forced to perform a part of it at night, and often he was kept at work until 9 or 10 o'clock, and sometimes later. Moreover frequently he was unable to go home for dinner, for, as he explains, to have done so would have required about two hours, and this would have meant that he would have had to remain in his office two hours later at night. The record leaves no doubt that defendant was at work in his office at nights, and that the nature of his work was such as to have kept him there frequently until a comparatively late hour. The record also establishes, we think, that upon the completion of his work defendant returned to his home each night. While he was kept at his office generally until rather late at night on weekdays, yet he made it a rule to leave it on Sunday afternoons between 1 and 2 o'clock, and upon those afternoons, when the weather permitted, he usually took his wife and child automobiling. The only exception to this rule was during the last two or three months, prior to the institution of this suit, when it appears that his work was such for the time being as to require him to devote nearly all of his Sunday afternoons and evenings to it, which precluded him from going out with his wife and child on these afternoons, and from being with them on those evenings.

This condition of affairs dissatisfied plaintiff from an early period of her married life. She constantly assumed a position that was antagonistic to her husband's business interests. She insisted upon his taking her out, and upon his devoting his evenings to her, when it was impossible for him to do so, without seriously neglecting and endangering his business, upon which both she and he depended for a livelihood. And she still complains, as we have observed, of his failure in these respects, which she apparently attributes to deliberate and cruel neglect upon his part.

True plaintiff would have been entitled to more of the society of her husband than she actually received, had it been reasonably possible for him to have given her more of it, but, under conditions as they existed during the period complained of, we think that it appears that it was not reasonably possible for defendant to have given her more of it; and we...