Hibner v. Hibner

• Decision Date: 18 May 1953
• Docket Number: No. 38771,38771
• Citation: 64 So.2d 756,217 Miss. 611
• Parties: HIBNER v. HIBNER.
• Court: Mississippi Supreme Court

Page 756

64 So.2d 756

217 Miss. 611

HIBNER v. HIBNER.

No. 38771.

Supreme Court of Mississippi.

May 18, 1953.

Adams, Long & Adams, Tupelo, for appellant.

Claude F. Clayton, Tupelo, for appellee.

HALL, Justice.

Appellant brought suit for divorce against appellee on the statutory ground of habitual cruel and inhuman treatment. The acts primarily complained of are that for many years past the appellee has constantly and habitually and almost daily accused him of adultery, claiming that he is constantly running after other women and that other women are constantly chasing him; that these accusations are made so often that he has become nervous and is unable to sleep, and that they are wholly false and without foundation; that his health has thereby been affected and he fears the loss of his mind if he continues to live under such circumstances. Appellee answered the bill denying the principal allegations thereof and also filed a cross bill wherein she asked for alimony and counsel fees. At the conclusion of the evidence the chancellor dictated an opinion in the record in which he found that the parties are incompatible, that neither is without fault, that 'the honors are about equal', and he entered a decree dismissing the original bill and the cross bill. From that decree the husband appeals and the wife cross-appeals.

In denying relief the chancellor evidently had in mind the case of Long v. Long, 160 Miss. 492, 135 So. 204, which stated that the honors were even between the parties. That case, however, did not involve the acts relied upon in this case as constituting cruel and inhuman treatment, and, so far as we can find, there is no Mississippi decision directly in point.

In Amis on Divorce and Separation in Mississippi, Section 110, page 155, it is said: 'But if one spouse falsely and maliciously charge the other with adultery, without probable or just cause, for the purpose of inflicting pain, or to subject him or her to public scorn, shame, disgrace or humiliation, the act is cruel. 9 R.C.L. 345, 346, Sections 127, 128. Likewise if one spouse falsely and maliciously circulate rumors concerning the other, charging any unlawful or immoral conduct which would naturally tend to cause shame, humiliation, or disgrace, the act would be cruel. 9 R.C.L. 347, Section 128.'

Again, in Amis on Divorce and Separation in Mississippi, Section 112, page 158, it is said: 'And yet the most refined cruelty, the poisoned shafts of scorn, ridicule, sarcasm, contempt, insult, verbal abuse, slander, neglect, and the like, are often more painful to cultured and sensitive persons than mere blows would be. And it is well recognized that actue mental suffering may destory the health or even endanger the life of its victim. 9 R.C.L. 341, Sections 122, 123. So in determining whether or not the habitual or usual conduct of the defendant has been such as to endanger the life, limb or health of the complainant, or to create a reasonable apprehension of danger thereto, his or her entire course of conduct during the period complained of should be considered; 9 R.C.L. 335, Section 115; as well also as that of the complainant in order to show what provocation, if any, there was to cause the conduct complained of.'

We have many cases in Mississippi which hold that before a divorce can be granted on the ground of cruel and inhuman treatment the acts constituting cruelty must have been accompanied by physical violence or must be such as to engender a reasonable apprehension thereof. Those cases must be viewed, however, in the light of the acts therein complained of and the facts therein shown. For the first time in the jurisprudence of this State, so far as we can find, we are presented with the question whether false accusations of infidelity, habitually made over a long period of time, without reasonable cause, constitute such cruelty as to warrant the granting of a divorce. We align ourselves with the majority of the courts in the country which hold in the affirmative.

A case almost directly in point is Kennedy v. Kennedy, 302 Mich. 491, 5 N.W.2d 438, 143 A.L.R. 617. Following the report of that case there is an exhaustive annotation in 143 A.L.R. at pages 623-661, from which we quote brief excerpts: 'Although it has been stated, in a few cases in which there were several acts of cruelty which together were sufficient to authorize the granting of a divorce, that the making of false charges of adultery is not of itself sufficient to constitute cruelty, it is recognized in the great majority of the cases that the making of false accusations of adultery or unchastity may of itself, where the requisite degree...