Hayes v. Hayes

• Decision Date: 03 November 1923
• Citation: 86 Fla. 350,98 So. 66
• Parties: HAYES v. HAYES.
• Court: Florida Supreme Court

98 So. 66

86 Fla. 350

HAYES v. HAYES.

Florida Supreme Court

November 3, 1923

Suit by I. H. Hayes against Abbie E. Hayes, for divorce. Decree for defendant, and complainant appeals.

Affirmed.

Syllabus by the Court

SYLLABUS

Drug habit not a ground for divorce. The drug habit is not a ground for divorce in this state.

Single act or isolated instances of cruelty not ground for divorce. A single act of violence is not nor are isolated instances of cruelty repeated at long intervals sufficient grounds for divorce.

Slight acts of violence not ground for divorce. A divorce is not authorized for every slight violence which an angered husband may commit against his wife, and much less will slight acts of violence by a wife from which the husband can easily protect himself constitute cruelty entitling him to divorce.

Appeal from Circuit Court, Marion County; W. S Bullock, judge.

COUNSEL

S. T Sistrunk, of Ocala, for appellant.

T. S Trantham, of Lakeland, for appellee.

OPINION

TERRELL J.

Appellant, I. H. Hayes, who was complainant below, filed his amended bill praying a dissolution of the marriage bond existing between himself and defendant, Abbie E. Hayes; the grounds for the prayer being extreme cruelty and 'habitual intemperance, in that she habitually and continuously indulged in the use of narcotic drugs to excess, and indulged in such habit until she became a victim thereof, and until the effect of the excessive use of such drugs rendered the defendant unable and unfit to perform the duties and obligations of a wife, and rendered the continuance of the marital relation between them intolerable and impractical.'

The defendant having been committed to the Hospital for the Insane at Chattahoochee at the time the bill of complaint was filed, the court appointed Hon. T. S. Trantham, a practicing attorney of Ocala, Fla., as guardian ad litem to appear and represent her and do all things necessary and proper for her defense in this action.

Mr. Trantham, as guardian ad litem, filed his answer requiring good and sufficient proof of all the material allegations in the bill, and incorporated therein a demurrer to that part alleging 'habitual intemperance.'

The chancellor sustained the demurrer, and on final hearing dismissed the bill of complaint. Appeal is taken from both orders.

'Habitual intemperance of defendant' is a ground for divorce in this state, and the effect of the demurrer sustained below raises the question of whether or not 'habitual intemperance' should be extended to cover the immoderate use of drugs, or, under the terms of our statute, is the drug habit a ground for divorce?

Our statute making habitual intemperance a ground for divorce seems to have been enacted in 1835, when the intemperate use of alcoholic beverages was frequent, while the drug habit was comparatively infrequent. Black's Law Dictionary defines habitual intemperance as that degree of intemperance from the use of intoxicating drinks which disqualifies the person a great portion of the time from properly attending to business, or which would reasonably inflict a course of great mental anguish upon an innocent party. Mowry v. Home Life Ins. Co., 9 R. I. 346. text 355; Zeigler v. Commonwealth (Pa.) 14 A. 237, text 238; Tatum v. State, 63 Ala. 147, text 149; Elkin v. Buschner (Pa.) 16 A. 102, text 104.

Webster's International Dictionary and the Century Dictionary define intemperance as the excessive indulgence in intoxicating liquors, while Bouvier's Law Dictionary and Words and Phrases present numerous definitions from counts of last resort in line with the foregoing from Black's Law Dictionary.

'Habitual intemperance,' as a ground for separation, means the custom or habit of getting drunk; ordinary beer drinking, short of intoxication, furnishes no ground for such a charge. Schaub v. Schaub, 117 La. 727, 42 So. 249.

Habitual drunkenness or intemperance, as a statutory ground for divorce, means an irresistible habit of getting drunk, a fixed habit of drinking to excess, such frequent indulgence to excess as to show a formed habit and inability to control the appetite. Garrett v. Garrett, 252 Ill. 318, 96 N.E. 882; Lentz v. Lentz, 171 Mich. 509, 137 N.W. 229; Page v. Page, 43 Wash. 293, 86 P. 582, 6 L. R. A. (N. S.) 914, 117 Am. St. Rep. 1054; O'Kane v. O'Kane, 103 Ark. 382, 147 S.W. 73, 40 L. R. A. (N. S.) 655; Tarrant v. Tarrant, 156 Mo.App. 725, 137 S.W. 56; Donley v. Donley, 150 Mo.App. 660, 131 S.W. 356.

The case of Ring v. Ring, reported in 112 Ga. 854, 38 S.E. 330, contains an illuminating discussion on the proposition that 'habitual drunkenness' as ground for divorce means drunkenness produced by the excessive use of alcoholic liquors, and has no reference to the excessive use of drugs. This view is supported by the following: McGill v. McGill, 19 Fla. 341; State v. Kelley, 47 Vt. 294; Commonwealth v. Whitney, 11 Cush. (Mass.) 477; Burt v. Burt, 168 Mass. 204, 46 N.E. 622; Dawson v. Dawson, 23 Mo.App. 169; Youngs v. Youngs, 130 Ill. 230, 22 N.E. 806, 6 L. R. A. 548, 17 Am. St. Rep. 313; Smith v. Smith, 7 Boyce, 30 Del. 283, 105 A. 833; Rindlaub v. Rindlaub, 19 N.D. 352, 125 N.W. 479, and Schouler on Marriage, Divorce, Separation, and Domestic Relations, vol. 2 (6th Ed.) p. 1787.

The text-books all make a distinction between and discuss under different heads the immoderate use of drugs and habitual intemperance, and many states with old statutes like ours have in recent years enacted laws enlarging the meaning of 'habitual intemperance' or 'habitual drunkenness,' and such like terms, to cover the intemperate use of drugs, but such statutes have not been passed in our state, so we must conclude that the Legislature used the term 'habitual intemperance' in its plain, ordinary, and usual sense, viz. the intemperate use of alcoholic beverages, and has no application to the drug habit. Defendant's demurrer to this part of the bill was therefore properly sustained.

The demurrer having been sustained, the only question left for consideration at final hearing was that of 'extreme cruelty,' and, the defendant having been committed to the hospital for the insane can this charge be properly or legally sustained?

Counsel for complainant argues that the acts constituting extreme cruelty on the part of defendant to complainant were committed while defendant was sane, and that her insanity cannot now be interposed as a defense in this suit. It seems to be a well-established rule in many states that proceedings for divorce may be instituted against an insane spouse for any ground of divorce accruing while such spouse was sane and that the subsequent insanity of such spouse is not under moderan law regarded as a bar to such proceedings. 9 R. C. L. p. 375; Harrigan v. Harrigan, 135 Cal. 397, 67 P. 506, 87 Am. St. Rep. 118; Newcomb v. Newcomb, 13 Bush. (Ky.) 544, 26 Am. Rep. 222; Garnett v. Garnett, 114 Mass. 379, 19 Am. Rep. 369; Matchin v. Matchin, 6 Pa. 332, 47 Am. Dec. 466; Fisher v. Fisher, 54 W.Va. 146, 46 S.E. 118, 1 Ann. Cas. 251; Long on Domestic Relations, par. 138, note; Bishop on Marriage, Divorce, and Separation; Schouler on Marriage, Divorce, Separation, and Domestic Relations, 1880; Huston v. Huston's Committee, 150 Ky. 353, 150 S.W. 386; Pile v. Pile, 94 Ky. 308, 22 S.W. 215; Lewis v. Lewis, 60 Okl. 60, 158 P. 368; Steed v. Steed, 54 Utah, 244, 181 P. 445.

The bill of complaint in this cause was filed July 20, 1921. The evidence shows that complainant and defendant were married in 1904, and lived together as man and wife until March 17, 1920, when defendant was adjudged insane. Complainant testifies that about two or three years after their marriage he first discovered that defendant was using opiates; that he treated her the best his means and station in life afforded; that he first thought defendant was using opiates to relieve pain; that he placed her under the treatment of Dr. Wallace, a specialist, at Dade City, in 1913; and that while under the influence of drugs defendant was fractious and quarrelsome.

Complainant further testifies that in 1917 and 1918 defendant presented a gun at him and threatened to kill him; that on another occasion she struck at him with a knife, and that on still another occasion she attempted to take his life with a stick of wood; that at each of said times she exhibited a violent and ungovernable temper, and at one time addressed complainant as a son of a bitch.

The evidence also shows that defendant was curred of the drug habit in 1915; that she showed no signs of insanity till a short time prior to March, 1920; and Dr. Clark testified that he was the family...