Humber v. Humber

• Decision Date: 26 April 1915
• Docket Number: 16813,17221
• Citation: 68 So. 161,109 Miss. 216
• Court: Mississippi Supreme Court
• Parties: HUMBER v. HUMBER

68 So. 161

109 Miss. 216

HUMBER v. HUMBER

No. 16813, 17221

Supreme Court of Mississippi

April 26, 1915

APPEAL from the chancery court of Coahoma county. HON. M. E. DENTON Chancellor.

Suit by James E. Humber against Lotta E. Humber. From a decree for defendant, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Affirmed. Overruled.

Mayes &amp Mayes, for appellant.

Cutrer & Johnston, for appellee.

OPINION

REED, J.

This is a divorce suit. Both parties sought divorce, each from the other. The chancellor refused divorce to both of them.

The original bill was filed by the husband, James E. Humber. He relied upon the ground in the statute of habitual cruel and inhuman treatment. Mrs. Lotta E. Humber, the wife, filed an answer to the bill, denying the allegations thereof, and made her answer a cross-bill in which she asked for divorce on the ground of habitual cruel and inhuman treatment, and also prayed for alimony pendente lite and counsel fees to enable her to defend the suit; also for permanent alimony, and for general relief in equity.

The chancellor on December 7, 1912, upon motion by appellee for the allowance of alimony pendente lite and counsel fees as prayed for in her cross-bill, ordered the appellant to pay her alimony at the rate of thirty dollars per month from September 29, 1910, the date when the original bill was filed, which aggregated the sum of seven hundred and eighty-nine dollars, and the further sum of one hundred dollars for account of her expenses in attendance upon court and preparation of her defense, and the further sum of two hundred and fifty dollars on account of fees to her solicitors in the cause. The chancellor further ordered appellant to pay his wife, from the time of the decree and during the pendency of this suit, the sum of forty dollars per month as alimony. From this decree an appeal was prosecuted.

Upon the final hearing of the cause on pleadings and proof, the chancellor in his final decree, after refusing to dissolve the bonds of matrimony, as prayed for in both the original bill and the cross-bill, retained the original bill, answer, and cross-bill for the purpose of securing to appellee proper allowance of counsel fee and sufficient allowance for her separate maintenance and support, and thereupon fixed her solicitor's fee at the sum of one-thousand two hundred and fifty dollars, which included the amount of two hundred and fifty dollars already allowed, and ordered appellant to pay to appellee, his wife, the sum of one hundred dollars per month, beginning with July 23, 1913, for her separate maintenance and support. From this decree appellant prosecuted his appeal.

By agreement of counsel for appellant and appellee, both appeals in this case are to be heard and considered together as one. Appellant, a planter of Coahoma county, in this state, and a bachelor who had reached middle life, was on July 12, 1910, married to appellee, then Mrs. Lotta Edson, who was about thirty eight years of age, at her place of residence, the home of her mother in Mt. Vernon, Ind. Appellee had previously been married and was then divorced. The marriage between appellant and appellee followed a courtship, chiefly by correspondence, of some months, during which time Mr. Humber visited Mrs. Edson at her home. After the bridal tour of about two months, and as soon as the couple reached the home of Mr. Humber in this state, they separated, and shortly thereafter the divorce proceeding was instituted.

From the proof introduced by appellant, it appears his purpose to show that the cruel and inhuman treatment complained of consisted of the conduct of his wife in a number of incidents during their travels, in which she displayed temper and dissatisfaction with him and his provisions for her comfort and entertainment, and wherein she was inconsiderate of his feelings, abusive to him, discourteous and rude to his friends and kinsfolk, and generally disagreeable in her demeanor.

Appellant testified that the beginning of these incidents followed closely the marriage ceremony. He said that she claimed that he was not courteous to her friends when leaving Mt. Vernon; that she would not converse with him; that she charged him with flirting while on the train to Chicago, their first stopping point; that she was displeased with him for slipping his foot out of a tight-fitting shoe to relieve his discomfort; that she was dissatisfied with the Chicago hotel which he selected, and the room assigned to them, and sought to make him sleep on a round top lounge in the room; that she was angry and would not eat, because he insisted on using a carving knife while eating in a restaurant, and caused him mortification because her conduct attracted attention and created laughter; that she said she would return home, and wrote a letter to her mother, in which she threatened to commit suicide, leaving the letter where it could be seen by her husband. He further said that she charged him with flirting upon various occasions; that she refused to wait on him when he was sick; that upon going, in their travels, to the South, after visiting Waukesha, Wis., she complained of the heat and mosquitoes, and continued to nag and annoy him; that, while they were visiting in the state of Georgia, the former home of appellant, she refused to receive introductions to his former acquaintances and friends, and slighted their offers of courtesy, to the humiliation of appellant; that this conduct extended to his own relatives, including his mother, well advanced in years; that she was frequently mad and sullen, and upon nearing appellant's home in the city of Memphis, in the latter part of September, she demanded of him a thorough understanding as to what he was going to give her, and said that she would not live in the Mississippi bottoms with a man like appellant until she knew she was to get something.

According to appellant's testimony, the unhappiness of this bridal couple reached its climax when they left the train at the railroad station, and were about to proceed to appellant's plantation home, at Paradise. It is in testimony for appellant that she was hysterical, crying in a loud voice, and when she reached the home she refused to eat or drink or receive any attention whatever from the manager and his wife, demanded that her trunk be returned to the station, and started herself to walk from the residence, and was finally taken to the station in a buggy. It is further testified to that she refused then to return with appellant to his home; that she continued to abuse him, demanding money of him, and even threatened his life. A few days after this Mr. Humber filed his bill for divorce.

Appellee never at any time inflicted a physical injury upon appellant, and never made any effort or demonstration to do so. The proof does not disclose facts from which we may conclude that appellant apprehended bodily harm from his wife. Appellee in her testimony denied many of the occurrences testified to by appellant. Some of the incidents she admitted, but stated them in a different way and put them in a different light from that shown by appellant's version. For instance, she admitted the carving knife episode, but claims that it was at another time from that given by appellant, and that the amusement was caused, not by her conduct, but by his using the knife. She admitted that she was displeased with the room in the Chicago hotel, but denied that she conducted herself in the disagreeable manner indicated by appellant's statement, and says that the night was most unpleasant, for she could not sleep because of appellant's snoring. She denied the account given by appellant of her insulting treatment of his friends and relatives in Georgia. She states that she was sick at the time of her association with appellant's mother, and did not intend to be rude to her. She also testified that she was ill and nervous when she reached the railroad station where they disembarked from the train to go to the plantation. She says that she had never ridden behind a mule before, and was very much disappointed and displeased because she was going to Paradise in such a rig drawn by such an animal. She accounted for her conduct on that day on the ground of illness and the heat, and her temporary displeasure. She claimed that she desired to return and live with her husband, whom she loved, and that she requested him without delay to take her back.

It appears from the proof that appellant positively declined to live further with his wife after she refused to return to his home on the day of their arrival. The correspondence between the parties is of more than passing interest, because of the deeply affectionate terms used therein, and the pledges of love and devotion during the courtship, and because of appellee's letters, written to her husband after the separation, in some of which she expressed her earnest desire for reconciliation, and asked to be taken back by him; and in others she sought for a settlement with her husband on a financial basis, wherein she would receive from him a proper sum for her maintenance.

The testimony in this case is voluminous, and we do not in this opinion...