Mack v. Mack

• Decision Date: 16 November 1910
• Docket Number: 16,182
• Citation: 128 N.W. 527,87 Neb. 819
• Parties: RAEGINALD J. MACK, APPELLANT, v. ARTHUR MACK, APPELLEE
• Court: Nebraska Supreme Court

128 N.W. 527

87 Neb. 819

RAEGINALD J. MACK, APPELLANT, v. ARTHUR MACK, APPELLEE

No. 16,182

Supreme Court of Nebraska

November 16, 1910

APPEAL from the district court for Stanton county: GUY T. GRAVES JUDGE. Reversed.

REVERSED.

Mapes & Hazen and Allen & Dowling, for appellant.

John A Ehrhardt and Andrew R. Oleson, contra.

OPINION

ROOT J.

This action is prosecuted by the plaintiff against her stepson. The plaintiff, in substance, alleges that her husband became addicted to the excessive use of intoxicating liquors, and while intoxicated would assault, ill-treat and beat her so that she was compelled for her own safety, health and peace of mind to leave and live apart from him; that the defendant, while the plaintiff was thus living separate from her husband, orally promised her that, if she would return to her husband and care for him as best she could during his natural life, the defendant would support her so long as she should live; that, in consideration of said promise, she returned to her husband and lived with and cared for him during his natural life, but that the defendant has repudiated his agreement. The defendant admits that the plaintiff and his father were married, and denies all other allegations in the petition. The court excluded all evidence offered to prove the contract, for the alleged reasons that it is against public policy, and is not supported by a consideration. The jury, in obedience to a peremptory instruction, returned a verdict for the defendant. For the purposes of this appeal, we shall assume that the promise was made and that the plaintiff acted thereon, and shall confine the discussion to the alleged illegality of the contract and the lack of consideration to support it.

In this state marriage is a social status which may be assumed by the agreement of parties competent to contract with reference thereto. University of Michigan v. McGuckin, 64 Neb. 300, 89 N.W. 778. A married woman in Nebraska may own, hold and control her separate estate, engage in business on her own account, and contract with her husband. Ordinarily a married woman's financial transactions with her husband will be upheld. Currier v. Teske, 84 Neb. 60, 120 N.W. 1015. The marriage relation imposes upon the contracting parties obligations so well understood that it is unnecessary to enumerate them, but they are reciprocal, and no husband, as a matter of right, is entitled to his wife's society or services if he violates his part of their compact. If the husband becomes an habitual drunkard, or is guilty of extreme cruelty to his wife, she may procure a release from the bonds of matrimony (Comp. St. 1909, ch. 25, secs. 6, 7), or she may depart from his home and live separate and apart from his (Kikel v. Kikel, 25 Neb. 256, 41 N.W. 180; Sample v. Sample, 82 Neb. 37, 116 N.W. 953).

In the case at bar, if the statements made by the plaintiff in her petition are true, she had good grounds for a divorce from her husband at the time she separated from him and it follows as a necessary consequence that he had no claim in law to her services or society. Authorities are cited to sustain the argument that the contract is contrary to public policy, and therefore void. In so far as those cases refer to instances where the wife without just cause departed from her husband and refused to live with or perform her duty to him, they...