Murray v. Murray, 48264

• Decision Date: 10 March 1953
• Docket Number: No. 48264,48264
• Parties: MURRAY v. MURRAY.
• Court: Iowa Supreme Court

Page 234

57 N.W.2d 234

244 Iowa 548

MURRAY v. MURRAY.

No. 48264.

Supreme Court of Iowa.

March 10, 1953.

A. V. Hass, Chariton, for appellant.

Johnston, Shinn & Johnson, Knoxville, for appellee.

LARSON, Justice.

This is an action for divorce brought by plaintiff Mabel Murray based on cruel and inhuman treatment. Defendant filed an answer of denial and asked a fair division of the property if the divorce was granted. On trial, decree was for plaintiff and property settlement of $500 for defendant. Defendant appealed claiming insufficient evidence to prove the treatment endangered plaintiff's life and health and claiming an inequitable division of property was awarded defendant.

Section 598.8, Code 1950, I.C.A. provides:

'Divorces from the bonds of matrimony may be decreed against the husband for the following causes: * * *. 5. When he is guilty of such inhuman treatment as to endanger the life of his wife.'

Sec. 598.14, Code of 1950, I.C.A., provides:

'When a divorce is decreed, the court may make such order in relation to the children, property, parties, and the maintenance of the parties as shall be right.'

Plaintiff, age 56, and defendant age 69, were married in April, 1937. Both had been married previously, defendant to plaintiff's sister. No issue by birth or adoption, but a grandson of plaintiff, Billy, 14 years of age, resided with them until they parted in January, 1951. Defendant had been in poor health for the last four years and had done little or no work. Prior to that time defendant was employed in and about Chariton as a brick mason and had spent only week ends at home during the working season of nine or ten months of the year.

At the time of the marriage plaintiff was a tenant farmer with her son and together they owned certain stock and equipment left them when plaintiff's former husband passed away. Later plaintiff and her son purchased a farm for $10,000, paying $1,700 down. Subsequently it was sold for $15,500 and plaintiff's son engaged in farming for himself. From plaintiff's share of that farm adventure were funds which now appear to be in the nine acre tract in plaintiff's name, near Attica, Iowa, valued at about $6,500.

In the two years before defendant ceased to work he had earned some $3,383.07 and except for his own expenses away from home had contributed most of it to the family support. A cow given defendant by his son was sold for $230 recently to pay bills. In addition, the receipts from defendant's $1,000 fire insurance on furniture had gone into reconstructing the fire destroyed farm house on the farm property of plaintiff and her son. Defendant also had aided by his labor in rebuilding the farm home. In addition, defendant claimed to have contributed some money received from the 1948 sale of his property near Chariton, Iowa, toward the purchase of a prior owned Knoxville house placed in plaintiff's name and later traded for the presently owned property.

Plaintiff had worked at a laundry in Knoxville and at homes there to provide the family support after defendant's illness. She also took in roomers and did laundry. Little trouble occurred until defendant's illness and he ceased working. He then became irritable and abusive charging plaintiff with poor cooking and infidelity. During the past four years of married life the relationship became progressively worse until defendant left in January, 1951. No fault is charged to plaintiff.

I. Essentially each divorce case presents a fact question. We must first examine the record for acts which amount to cruelty, and decide whether or not they amount to inhuman treatment, and further whether or not such treatment was such as to endanger the life and health of the complainant.

Proof of physical violence, or batteries, is not necessary to satisfy our law, for it has been said, 'the court is not to wait till the hurt is actually done.' Evans v. Evans, 1 Hag.C.R. 35; 4 Eng. &c. 310, 312. The welfare of society, nor the parties' relationship demand that sufferance. We said early in our court's history, 'When once it is ascertained that because of the conduct of the guilty party, the life of the libellant is endangered the nature of the treatment is inhuman or is legal cruelty.' Beebe v. Beebe, 10 Iowa 133.

In this case, we have examined the fifteen years of married life of the parties, for we have said the whole married life must be considered in such cases--not separate incidents of misconduct. Meyer v. Meyer, 169 Iowa 204, 151 N.W. 74.

The main cause of the trouble in this relationship, as we read the record, occurred through an unfounded suspicion of defendant, developed during the past four years, that plaintiff had affairs with other men, and, secondly, and perhaps to a lesser degree, the financial distress of the family. At any rate the irritability and violent outbursts of defendant, with no cause or fault of plaintiff, caused both to become extremely nervous and ill. Several incidents are related by plaintiff and her grandson. One related to her cooking when defendant called her names and said it 'wasn't fit to feed a dog', and a later one when he would 'get up in the night and tramp around with guns at all hours of the night', and threatened to shoot her and himself. Other incidents of like character constituted the life of these ill-adjusted people. While the corroborating witness, Billy, may have aggravated the condition with his mischievous false statements to defendant, the falseness of them should have been easily detected by one with nothing else to do, and he should not have persisted in them. These false beliefs of defendant may raise some suspicion of his mental instability, but no evidence of such instability otherwise appears in the record, with the exception of plaintiff's daughter saying she thought he was losing his mind. However it does not condone defendant's treatment of his wife and cannot explain away his actions with a 410 shot gun clearly designed to frighten, if not injure, the plaintiff. That he was not in jest is disclosed by the fact that the alarmed grandson of plaintiff removed the firing pin from the gun to protect his grandmother's life. To use his words, 'I took it out because I didn't want to take no chances.' 'You never can tell, he might have got up enough nerve to have shot her.' The grandson said that he was a little bit worried about his grandmother. At other times defendant swore at plaintiff and threatened 'to shoot her'. Also, threatened to 'get a club and beat' plaintiff and her grandson to death, saying, 'I'm going to get a club, God damn you and beat you to death.' All this made plaintiff extremely nervous and she stated that she 'became afraid of him.' He once choked her and placed his fingers across her throat, then gritted his teeth and walked away. From these and other outbursts of temper and exhibitions of morose attitude toward the plaintiff we find that plaintiff had cause to be apprehensive as to her life or health and is entitled to relief. An aggrieved spouse need not wait until harm has been done. Indeed, in this case that may have been too late. Weatherill v. Weatherill, 238 Iowa 169, 25 N.W.2d 336; Zuerrer v. Zuerrer, 238 Iowa 402, 405, 27 N.W.2d 260; Sackrider v. Sackrider, 60 Iowa 397, 14 N.W. 736; Berry v. Berry, 115 Iowa 543, 88 N.W. 1075; Anderson v. Anderson, 191 Iowa 497, 181 N.W. 241; Luick v. Luick, 132 Iowa 302, 109 N.W. 783; Hill v. Hill, 201 Iowa 864, 208 N.W. 377.

In the early case of Freerking v. Freerking, 19 Iowa 34, this court said: 'The statute requires two ingredients in cruel treatment to constitute ground for divorce: 1st, it must be inhuman. 2d. It must endanger life.'

In Beebe v. Beebe, supra, appears the following: 'In the case of cruelty under our statute, the treatment received is not of itself a cause of divorce, and becomes material only as showing a just foundation for the apprehended danger to life. And this cause of divorce is founded on the well recognized law of nature, that the duty of self preservation takes precedence, and that the duties of this relation are not required to be performed in a state of personal danger.'

This was not a case of plaintiff fading away from the lack of affection or attention. Neglect is not her...