Mack v. Handy

• Decision Date: 01 April 1887
• Docket Number: 9807
• Citation: 2 So. 181,39 La.Ann. 491
• Court: Louisiana Supreme Court
• Parties: MRS. ELIZABETH MACK, WIFE, v. ALEXANDER STUART HANDY, HUSBAND

2 So. 181

39 La.Ann. 491

MRS. ELIZABETH MACK, WIFE, v. ALEXANDER STUART HANDY, HUSBAND

No. 9807

Supreme Court of Louisiana

April 1, 1887

APPEAL from the Civil District Court for the Parish of Orleans. Houston, J.

Nicholls and Carroll for Plaintiff and Appellee.

C McRae Selph for Defendant and Appellant

OPINION

WATKINS J.

Plaintiff sues her husband to obtain against him judgment of divorce, and in the alternative a separation from bed and board.

Her petition is elaborate, and the charges and specifications are quite numerous.

They are to the effect that for several years past defendant has been guilty of "habitual intemperance" and "excesses, cruel treatment and outrages towards her that he has cursed, abused and insulted her without cause, in public and private; and that such habitual intemperance ill-treatment and excesses are of such a nature as to render their living together insupportable."

It also charges that defendant has not supported her and her children properly and decently; but that he has spent his means in riotous living, dissipation and debauchery in the company of disreputable associates and lewd and abandoned women.

That his general conduct, habits and manners are of such character that she is, and has been, in constant fear of herself and little children sustaining great bodily harm at his hands.

She specially charges that he has been guilty of repeated adulteries.

The defendant pleads the general issue; no cause of action, -- because petition shows that whatever causes she may have had have been condoned and extinguished by reconciliation; and finally that plaintiff has been improperly influenced to institute this suit, because he desired to remove to Canton, Miss., where he could better support and take care of them.

I.

In the lower court plaintiff's demand for a divorce was rejected, but the demand for separation from bed and board was sustained; and the defendant alone appeals. But, in in this Court, the plaintiff has answered the appeal and prayed for an amendment of that decree, to the end that she have judgment of divorce. In this manner all the issues raised in the lower court are presented here for decision.

On the trial defendant excepted to the ruling of the judge a quo permitting the introduction of evidence in support of the charge of adultery, on the ground that the allegations of plaintiff's petition were too vague and indefinite to admit of proof under them.

An examination of the petition will show that this vagueness and generality of averments, in respect to this charge, was intentional and was actuated by a pure and proper motive, to avoid the recital of painful and disgusting details.

The petition clearly intimates to the defendant and the court, her entire willingness to spread them upon the record, if deemed necessary or desirable.

Before the case came on for trial, and prior to issue being joined, the plaintiff propounded interrogatories to Dr. Priestly, of Canton, Miss., and a well known druggist of this city, in which the character of the evidence she would rely upon, was clearly indicated; and, contradictorily with him, obtained a commission to obtain their answers. In addition, the judge a quo in passing upon his objections to the evidence, stated that if he was taken by surprise, he would allow him ample time to procure evidence in rebuttal; but defendant failed to avail himself of the privilege.

We fail to see in what respect the defendant has had injustice done him.

II.

Defendant further objects to any evidence being introduced for the purpose of establishing cruel treatment, habitual intemperance and other charges in support of a decree of separation from bed and board.

1st. Because it is not specifically claimed in the prayer of the petition.

2d. For the reason that a divorce and separation from bed and board cannot be demanded on one and the same suit.

Our predecessors decided both objections in the negative. 10 Ann. 663, Ledoux vs. Her Husband.

In 7 La. 282, Soovi vs. Ignogoso, the Court held that "a suit for a separation from bed and board, within the terms and meaning of the law, is an action of divorce. * * *

"The action of separation from bed and board, in all cases, leads to a divorce a vinculo matrimonii."

The Code expressly provides that "in the cases excepted above, a judgment of divorce may be granted in same decree, which pronounces the separation from bed and board." R.C.C. 139.

One of the exceptions referred to is adultery.

The objections were properly overruled.

III.

The defendant further excepted to the introduction in evidence of certain admissions of his as proof of adultery.

It has been held that in such suit as this "the law requires more than a simple confession of one of the parties to dissolve the bonds of matrimony between them; facts must be shown, and such facts as will authorize a court of justice to declare that the interference of the law is absolutely necessary." 16 La. 27, Harmon vs. McLeland.

Courts may, without impropriety, entertain such proof, in corroboration of other proven facts, from which adultery may be inferred, but not as substantive evidence.

Such proof is insufficient of itself to convict the defendant.

IV.

Possession by the defendant of suspicious mixtures, which were taken, by druggists and physicians, to have been a remedy in use for some venereal disease, is circumstantial proof insufficient to make out a case against him. There is a possibility that it may have been prepared and in use for a different purpose or disease. It is not certain that it was his, or in use at any time by him, though the indications point that way. But these are circumstances that are to be and have been considered, in connection with others, in deciding the points.

The soiled linen may be referred to some other cause or trouble, such as piles, tumors, boils, etc. True it is, that no specific act or fact has been proven with that degree of certainty that the law requires. And there is in the evidence nothing in time, place or circumstance to connect those suspicious indications with the defendant's confessions. In fact, his statement, taken as a whole, does not admit criminal conversation with any one.

From the evidence it appears that the suspicious indications appeared in 1877 and 1878, and were continued in 1879 and 1880, and again in 1882, from time to time during those several years. But during all these years the plaintiff and defendant resided together and lived as man and wife. In November, 1879, a son was born of their marriage, and in August, 1881, a daughter. They are shown to be perfectly healthy, bright and intelligent children.

It seems quite impossible that defendant could have led the dissolute life attributed to him during these years, and that he should have been so frequently under treatment for venereal ailments, without contributing it to mother or children.

In this particular the judgment rejecting plaintiff's demand was correct.

V.

Objection was urged by defendant to the introduction of proof of intemperance since the filing of the suit. The judge a quo permitted it; not to show a substantive cause, but a "continuing habit." That was correct.

He urged further objection to proof of his gambling, on the ground that there was no...