Mathewson v. Mathewson

• Decision Date: 07 May 1908
• Citation: 81 Vt. 173,69 A. 646
• Court: Vermont Supreme Court
• Parties: MATHEWSON v. MATHEWSON.

69 A. 646

81 Vt. 173

MATHEWSON

v. MATHEWSON.

Supreme Court of Vermont. St. Johnsbury.

May 7, 1908.

Exceptions from Caledonia County Court; Willard W. Miles, Judge.

Divorce action by Martha Mathewson against Edson H. Mathewson. Judgment for libelant, with $1,150 alimony, and libelee excepts. Reversed and remanded.

Argued before ROWELL, C. J., and TYLER, MUNSON, and WATSON, JJ.

Dunnett & Slack, for petitioner. Elisha May, Harland B. Howe, and Herbert W. Hovey, for petitionee.

ROWELL, C. J. A divorce from the bond of matrimony was decreed in this case for "intolerable severity." The treatment found is, in substance, not any personal violence, but that the libelee repeatedly accused his wife of adultery with two certain men, which accusations were sometimes made when he and his wife were alone, sometimes when others were present, especially their adopted son, who was 16 or 17 years old, and sometimes to others when his wife was not present, and that he had used harsh and abusive language to her, and called her vile names. It is found that there was no probable nor reasonable cause for the libelee to believe that his wife was guilty of adultery with either of those men, nor even of improper conduct with one of them, and that his accusations were groundless and false, and occasioned her "much mental suffering"; but that the libelee believed that improper relations existed between his wife and one of those men, and still believed so, but that this belief rested on no other foundation than his jealousy, arising, perhaps, from a certain transaction she had with that man, which, however imprudent on her part, did not justify the libelee's accusation of adultery with him. As to the other man, the court was unable to find that the libelee believed the accusation after he investigated the matter, which he did soon after the time when he claimed the adultery was committed. As to whether the "mental suffering" of the libelant injured her health, or might reasonably be expected to injure it, there is no finding.

The principal question is whether the facts found make a case of "intolerable severity" within the meaning of those words as used in the statute. The libelee's counsel contend that by the great weight of authority, both English and American, a false charge of adultery, made without reasonable or probable cause, unaccompanied by any act of personal violence, or any apprehension of such act, and unaccompanied by such injury to the feelings as to affect health, or to create a reasonable apprehension that it may affect health, does not constitute legal cruelty. The libelant's counsel say that the words, "intolerable severity," are not found in the divorce law of any other state; that the language most commonly used is "cruelty," "extreme cruelty," "cruel and inhuman treatment," and the like; that both courts and elementary writers seem to have found difficulty in giving a satisfactory definition of any of those expressions, and that they are found so coupled with other expressions held by courts to limit or to extend their meaning that perhaps no general definition can be given; that some of the earlier decisions held that "extreme cruelty" meant personal violence, but that in more recent years that definition has been discarded as too narrow and limited, and that it is now held that "cruelty," "extreme cruelty," "cruel and inhuman treatment," and the like may be established by any line of misconduct persisted in by the offending party to such an extent as to cause injury to the life, limb, or health of the other, or to threaten, or to create a danger of such injury; and that it is not regarded as necessary that such injury, present or threatened, should be the direct result of such misconduct, but that it is enough if produced by grief, worry, or mental anguish occasioned by such misconduct. We regard this as a substantially correct statement of the law of this subject as at present generally held, both in this country and in England. It accords with Mr. Bishop, when he says that as late as when he wrote the first edition of his "Marriage and Divorce," it seemed to be the prevailing judicial opinion that mental suffering had nothing to do with bodily ills, at least, that it did not so directly create those ills as to render the infliction of such suffering legal cruelty; but that now, under more enlightened physiological views, the legal doctrine has become settled everywhere he thinks that conduct that produces pain of mind is cruelty, whenever, operating alone or in combination with something else, it creates a danger to the physical health. 1 Bish. Mar. Div. & Sep. § 1563. And in section 1565 he says that this doctrine, having been affirmed in this country, has become fully established in England, as shown by Kelly v. Kelly, L. R. 2 P. & D. 31, and on Appeal, *59.

But the libelant's counsel are not satisfied with the law as they say it is, because it is too narrow for a just and righteous administration of it in cases like this, in which, they say, the wife should not be compelled to wait till her mental suffering has produced or threatened bodily harm; and therefore they urge the court, as it is not hampered by precedents of its own, to take a position more consistent with the interests of humanity, to the attainment of which, they say, the courts of some of the other states have blazed the way. But, in undertaking to follow the way said to be thus blazed, the same difficulty would be encountered that the counsel say attends the giving of a satisfactory definition of legal cruelty, and for the same reason, namely, the difference in the phraseology of statutes, held by the courts to limit or to extend their meaning. Mr. Bishop says on this subject that the statutes of a few of the states are in terms to invite a modification of the English rule, and cites the Civil Code of California as it was in 1885, which defined "extreme cruelty" as "the infliction of grievous bodily injury, or grievous mental suffering, upon the other by one party to the marriage." He goes on to say that some of those statutes permit divorce for excesses, cruel treatment, and outrages of a nature to render the living together of the parties insupportable, or employ other words of similar meaning; and that under them mental suffering, without danger to the physical security, will suffice, or, on the other hand, that the statute will be satisfied by blows alone. And he cites cases in Louisiana, Texas, Missouri, and Oregon as coming under these "exceptional statutes," as he calls them.

The libelant's counsel refer to cases from all of these states, except Missouri, as showing the way they want us to take. They also refer to cases from some of the other states, and among them to Waltermire v. Waltermire, 110 N. Y. 183, 17 N. E. 739. But that case is not with them. There it appeared that on one occasion the husband laid violent hands on his wife, led her to the door, threatened to knock her down, and struck at her twice; that on another occasion, falling to the floor from sickness, he said it was a pity she ever got up, and again said to her, "I shall be glad when you draw your last breath." He called her "all the bad names that belong to a bad woman," and accused her of adultery with different men in the neighborhood. The court said that these were the gravest circumstances that characterized his treatment as "cruel and inhuman," though there were others that made her life miserable, and rendered it unfit for her to live with him, and impossible for her to do so with any sense of self-respect or with any comfort. The court said that the ill feeling of the husband towards his wife was manifested repeatedly, not by mere petulence or rudeness, but by a series of acts of personal violence, and a continued use of insulting language, whereby he caused the abandonment of which he complained. Nor does New York occupy the position we are asked to take, as shown by Kennedy v. Kennedy, 73 N. Y. 369. There the court said, in the language of Lord Stowell in Evans v. Evans, 1 Hag. Con. 35, that "mere austerity of temper, petulence of manners, rudeness of language, even occasioned salies of passion, if they do not threaten bodily harm, do not amount to legal cruelty." The court then went on to say that these things may cause discomfort, mental anguish, and suffering, but, in the further language of Lord Stowell in that case, "the answer is that courts of justice do not pretend to furnish cases for all the miseries of human lite." But the court said that threats of violence by a husband to his wife, of a character to induce a reasonable apprehension of bodily injury, and charges of infidelity, made in bad faith as auxiliary to, and in aggravation of, the threatened violence, are sufficient to constitute "cruel and inhuman treatment," within the meaning of the statute authorizing a limited divorce.

Counsel also refer to Braun v....