Hale v. Hale

• Decision Date: 01 January 1877
• Citation: 47 Tex. 336
• Parties: VAN W. HALE v. S. J. HALE.
• Court: Texas Supreme Court

47 Tex. 336

VAN W. HALE

v.S. J. HALE.

Supreme Court of Texas.

1877.

APPEAL from Lamar. Tried before the Hon. R. R. Gaines.

This case is one in which both parties appealed; and though with much force and ability each argued against the enforcement of a judgment, it was affirmed notwithstanding. The history, as disclosed by the evidence, of the unfortunate incidents which resulted in alienating the affections of and ultimately separating the parties, would subserve no useful purpose, and its publication is not required to illustrate the principles enunciated in the opinion.

Maxey, Lightfoot & Gill, Bennett, Ballinger & Bennett, B. J. Barrows, Jr., and D. H. Scott, for V. W. Hale.--After arguing at much length the facts in the case on the subject of recrimination, they said:

In the application of the doctrine of “recrimination,” and upon which the court based the judgment of refusal to grant relief in this case, we respectfully submit that there was error both upon the law and the facts.

Under our statute, (Paschal's Dig., art. 3460,) in a suit for a divorce for the cause of adultery, if it appears that the complainant has been guilty of the like crime, or has condoned the offense, or if it appears to the court that the adultery complained of is occasioned by collusion of the parties, and done with the intention to procure a divorce, or where both parties shall be guilty of adultery, then no divorce shall be decreed.

It would seem from this that the Legislature intended to restrict the recriminatory bar to the one statutory cause for divorce, to wit, “adultery,” and that the bar does not extend to and include “cruelty,” whatever may be the rule at common law or under the statutes of the various States; and the maxim, expressio unius est exclusio alterius,“was never more applicable than when applied to the interpretation of a statute.” (Broom's Legal Maxims, 489.) It seems that the sages of the law have ever been guided by this rule of construction, and on page 490, Mr. Broom gives some very forcible illustrations of the doctrine. Hence we conclude that in enacting the general divorce statute of Texas, the Legislature never intended, nor does the language used in the ““act” justify, the construction that “recrimination” of cruelty on the part of the complainant would bar a recovery on a charge of cruelty on the part of the defendant, and especially where it is clear, as in this case, that there is no collusion. Besides, we conceive that this doctrine of “recrimination” has more direct application, and applies with more force where the recriminatory charges are set up--not by way of a cross-bill, (by which the defendant becomes plaintiff, so far as the cross-bill is concerned,) and upon which a divorce is prayed for, but for the sole purpose of interposing a bar to the complainant's recovery, and to the rendition of any decree in the case dissolving the bonds of matrimony.

In the French and the Scotch law, the doctrine of ““recrimination” is unknown--at least the Scotch courts refuse to recognize it--except as a foundation for a cross-suit. (2 Bishop, sec. 79.) Mr. Bishop (sec. 76) says, that recrimination “was a cardinal doctrine in the Mosaic law of marriage and divorce. It was transplanted from the Roman and canon into the common law, and it has found in the latter a congenial soil;” and says Lord Stowell, “it would be hard if a man could complain of a breach of a contract which he has violated;” but on examination, these statements have more especial application to cases of adultery, for such parties are suitable and fit companions for each other.

According to the common law, divorces a mensa et thoro only were granted, and hence the English authorities are in many particulars imperfect guides for us, where our courts, under the law, grant divorces a vinculo matrimonii. And even under the English divorce “act” it has not been decided that adultery would not bar a prosecution for cruelty; but on the other hand it is established, that adultery would bar a prosecution for cruelty--showing that both by the common law and by our statute, adultery being the more grievous offense, a different rule obtains, and that that offense at common law could be set up in bar of any other, (2 Bishop, sec. 80;) and in the same section the learned author says: “And, to return to the English law, a late writer says, ‘it may seriously be doubted whether a recrimination of cruelty is a good plea in answer to a suit charging the same offense.’ 'DD'

In Texas, divorces are granted for “adultery” and also for “cruelty.” The consequence is, that the doctrine of the English ecclesiastical courts, as to recrimination, are not necessarily law with us. Our statute, (Paschal's Dig., art. 3460,) on the subject of recrimination, seems to re-enact and follow the English divorce act, where the charge is adultery, but no further. (2 Bishop on Mar. and Div., sec. 81.)

In Louisiana, the code provides for a divorce from bed and board for excesses, cruel treatment, and outrages of such a nature as to render the living together of the parties insupportable; and, in construing that statute, it is held that a series of studied vexations and provocations, without resorting to personal violence, might constitute that degree of cruel treatment which would form a just ground for a separation from bed and board; and, under our statute, such cruelty is a ground for a divorce from the bond of matrimony, and has received the same construction by our Supreme Court. (2 Bishop, sec. 724; Tourne v. Tourne, 9 La., 452-456; Schreck v. Shreck, 32 Tex., 578;Sheffield v. Sheffield, 3 Tex., 79;Byrne v. Byrne, 3 Tex., 336-340;Wright v. Wright, 6 Tex., 3;Nogees v. Nogees, 7 Tex., 538.)

Wright & McDonald and E. L. & H. H. Dahoney, for Jane J. Hale, also insisted on a reversal of the judgment on the facts of the case.

MOORE, ASSOCIATE JUSTICE.

The parties to this action mutually seek to obtain a divorce, upon the ground of excesses, cruel treatment, and outrages of such a nature as to render their living together unsupportable, charged by them, respectively, in the petition and cross-bill. Neither of them desiring a jury, the case was tried by the judge, who, after considering the law and facts upon which they respectively relied, rendered judgment, refusing to grant a divorce to either of them, upon the case made under the petition of the plaintiff, or on the cross-bill filed by the defendant. From this judgment both parties prosecuted an appeal; and each of them have, in effect, assigned for error--

1st. The action of the court in sustaining the exceptions of the one to the pleadings of the other.

2d. In ruling,...