Kelly v. Kelly

• Decision Date: 11 July 1883
• Citation: 1 P. 194,18 Nev. 49
• Parties: JOHN KELLY v. KATE KELLY.
• Court: Nevada Supreme Court

1 P. 194

18 Nev. 49

JOHN KELLY v. KATE KELLY.

Supreme Court of Nevada

July 11, 1883

In actions for divorce on the ground of extreme cruelty, the element of danger to life, limb, or health must exist to constitute legal cruelty; but actual or threatened physical violence is not necessary to produce this effect; it may be accomplished by any continued course of insults and humiliations,--health and even life may be destroyed thereby. The statute contemplates cases where a husband may be complainant as well as a wife, because he may possibly be the weaker party, and because, if not, he may be tempted to use violence in self-defense.

BELKNAP J.

This is an appeal from a judgment of divorce in favor of the husband and against the wife upon the ground of extreme cruelty. Neither the findings of the court nor any statement of the evidence has been brought here. The appeal is taken from the judgment roll alone, and the principal question presented for consideration is whether the allegations of the complaint are sufficient to support a judgment of divorce.

The complaint, after setting forth the necessary jurisdictional facts, proceeds as follows: "That since the said marriage defendant has been guilty of extreme cruelty towards this plaintiff; that on the sixth day of July, A. D. 1881, at the city of San Francisco, defendant falsely charged plaintiff with committing adultery, and frequently since said date has accused him of conjugal infidelity, and with living and cohabiting with other women, and has since then constantly circulated among their mutual friends charges of the same character. Plaintiff further avers that since the said sixth day of July, A. D. 1881, defendant has been in the habit of villifying, slandering, and abusing this plaintiff and applying to him the most opprobrious epithets and has frequently threatened to abandon plaintiff; that by reason of the acts of the defendant hereinbefore set forth the life of the plaintiff has been rendered unendurable and miserable, so that he has been forced to cease cohabiting and living with defendant."

In considering extreme cruelty as a ground of divorce courts have cautiously given it negative, rather than affirmative definitions. The difficulty in giving it an affirmative definition arises from the fact that cruelty is a relative term; its existence frequently depends upon the character and refinement of the parties, and the conclusion to be reached in each case must depend upon its own particular facts. "We do not divorce savages and barbarians because they are such to each other," said the supreme court of Pennsylvania, in Richards v. Richards. "We can exercise no sound judgment in such cases [divorce cases] without studying the acts complained of in connection with the character of the parties, and for this we want the common sense of the jury rather than fixed legal rules." 37 Pa. 228.

In the great case of Evans v. Evans, 1 Hagg. Cons. 35, Lord STOWELL laid down certain principles which have been universally approved. He said: "What is cruelty? In the present case it is hardly necessary for me to define it because the facts here complained of are such as fall within the most restricted definition of cruelty; they affect not only the comfort, but they affect the health and even the life of the party. *** What merely wounds the mental feelings is in few cases to be admitted, when not accompanied with bodily injury, either actual or menaced. Mere austerity of temper, petulance of manner, rudeness of language, a want of civil attention and accommodation, even occasional sallies of passion, if they do not threaten bodily harm, do not amount to legal cruelty; they are high moral offenses in the marriage state, undoubtedly, not innocent surely in any state of life, but still they are not that cruelty against which the law can relieve. *** In the older cases of this sort, which I have had an opportunity of looking into, I have observed that the danger of life, limb, or health is usually inserted as the ground upon which the court has proceeded to a separation. This doctrine has been repeatedly applied by the court in the cases that have been cited. The court has never been driven off this ground. It has been always jealous of the inconvenience of departing from it, and I have heard no case cited in which the court has granted a divorce without proof given of a reasonable apprehension of bodily hurt. I say an apprehension, because assuredly the court is not to wait until the hurt is actually done; but the apprehension must be reasonable; it must not be an apprehension arising merely from an exquisite and diseased sensibility of the mind."

Adopting the principle that the element of danger...