Gordon v. Gordon
| Decision Date | 02 January 1865 |
| Citation | 48 Pa. 226 |
| Parties | Gordon <I>versus</I> Gordon. |
| Court | Pennsylvania Supreme Court |
This was a libel for divorce, "a mensa et thoro," in which the libellant set out two causes for a separation. They were, that the defendant, her husband, had "turned her out of doors," and "that he had offered such indignities to her person as to render her condition intolerable and life burdensome, and thereby force her to withdraw from his house and family." The answer of the defendant denied these allegations, and also pleaded in avoidance, "that the libellant, by her loose and immoral conduct and her ungovernable temper, causing her to commit acts of violence on the person of the defendant, destroyed the peace and comfort of his family, and rendered his condition intolerable and life burdensome." To the answer there was a general replication traversing all the averments of the defendant. The issues thus formed were submitted to a jury, and the errors assigned relate to the charge of the court given on the trial.
Before proceeding to a consideration of the several exceptions taken, it may be observed that the main contest before the jury, if not the only one, had reference to that averment in the libel which asserted that the defendant had turned the libellant out of doors, either actually or constructively, by refusing to permit her to remain in his house when she offered to remain with a purpose to perform in good faith her conjugal duties. That he had refused to permit her thus to remain was distinctly proved by several witnesses, and the verdict of the jury has established this averment in the libel. Whether the conduct of the libellant had been such as to justify the act of the defendant, was then the only remaining question. Upon this the court was requested to instruct the jury, that if the facts testified to by several witnesses named, as to her obscene and abusive language, the immoral conduct, the intemperate habits, and the violent acts of Mrs. Gordon, and her treatment of her husband, were proved to the satisfaction of the jury, they were such as would entitle David Gordon, the defendant, to a divorce, and therefore constituted a legal justification of his refusal to permit her to return to his house and family. Such instruction the court refused to give, holding that the cause which will justify a husband in turning his wife out of doors is such cause only as would entitle him to a divorce if he were seeking it, and that the evidence of the conduct of the libellant did not exhibit a case which, under any Act of Assembly, is a sufficient cause for decreeing a divorce at the suit of a husband. To this the first three errors are assigned, and they are so intimately connected with each other that they may best be considered as one. That the rule was correctly given by which the alleged justification of the defendant was to be measured, may be seen by reference to Eschback v. Eschback, 11 Harris 343, and Grove v. Grove, 1 Wright 447. Of this indeed there is no complaint. But it is insisted that the conduct of the libellant, as exhibited by the evidence, had been such before she was ejected from the defendant's house, as to amount to one of the causes for which a divorce is allowed to a husband by the Act of Assembly. That it was bad, shamelessly bad, must be conceded. That it was such as to call for the abhorrence of every right-minded man, appears plainly from the evidence. But it is not all bad conduct of a wife which entitles a husband to a divorce. Causes sufficient for that are such only as are defined in the Acts of Assembly. Under our statutes a distinction has always been made between the causes for a divorce at the suit of a wife, and those which justify a divorce at the suit of a husband. The Act of 1815 made no provision for a divorce by either party from bed and board. It authorized only a dissolution of the marriage bond, and of causes occurring subsequently to the marriage there were only two which were sufficient to entitle the husband to a divorce. They were the adultery of the wife and her wilful and malicious desertion of her husband, and her absence from his habitation without reasonable cause for two years. Though under that act the wife might claim a divorce for her husband's cruel and barbarous treatment endangering her life, or for such indignities offered by him to her person as to render her condition intolerable and life burdensome, and thereby force her to withdraw from his house and family, no such privilege was granted to the husband. It was doubtless not supposed that he was in equal danger of cruel and barbarous treatment endangering his life, or of indignities offered to his person such as to render his condition intolerable and life burdensome, and force him to withdraw from his family. He was thought able to protect himself. Hence no provision was made for such a case. This act was followed by the Act of 1817, which authorized a divorce from bed and board, with alimony, for certain causes, at the suit of the wife, but it made no alteration in the rights of the husband. It added no new cause to those which had previously been declared sufficient grounds for decreeing a divorce at his suit. Provision was made for a partial divorce at the suit of the wife for four distinct causes. They were, malicious abandonment by the husband of his family, turning the wife out of doors,...
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