Palmer v. Palmer

• Decision Date: 26 May 1890
• Citation: 7 So. 864,26 Fla. 215
• Court: Florida Supreme Court
• Parties: PALMER v. PALMER.

7 So. 864

26 Fla. 215

PALMER v. PALMER.

Florida Supreme Court

May 26, 1890

Appeal from circuit court, Hillsborough county; G. A. HANSON, Judge.

Syllabus by the Court

SYLLABUS

1. Divorce on the ground of extreme cruelty will be denied where there is no actual bodily violence, unless the treatment or abuse or neglect or bad conduct complained of be such as damages health, or renders cohabitation intolerable and unsafe, or unless there are threats of mistreatment of such flagrant kind as to cause reasonable and abiding apprehension of bodily violence, so as to render it impracticable to discharge marital duties.

2. Nor will divorce on the ground of habitual indulgence of a violent and ungovernable temper be granted unless that temper has been displayed towards complainant, and habitually, and with the effect of rendering life an oppressive and intolerable burden, and making it impracticable to discharge marital duties under such burden. Occasional outbursts of passion, petulance, readiness to anger, frequent and unreasonable complaints, though made in a loud-voiced boisterous manner, if these are only calculated to render the relations between the parties unpleasant and disagreeable, or simply unhappy, do not furnish sufficient cause for divorce.

COUNSEL H. C. Macfarlane and D. F. Hammond, for appellant.

Barron Phillips and Sparkman & Sparkman, for appellee.

OPINION

MAXWELL J.

This is a suit for divorce, the wife being the complainant. Her grounds of complaint are extreme cruelty, and the habitual indulgence of violent and ungovernable temper to wards her on the part of the husband. The original bill having been deficient in specifying the acts on which these charges were predicated, an amended bill was filed, to which there was a demurrer, afterwards waived, as it was succeeded by an answer without any disposal of the demurrer, so far as shown by the record. Issue was made, proofs taken, and on the final hearing a decree was rendered for the complainant, and from that the husband brings this appeal.

In support of its general charges the amended bill alleges that the defendant failed to provide complainant sufficient food and clothing, so that she and her children frequently suffered for the common necessaries of life. That during her first and second pregnancy he would force her to perform manual labor far beyond the strength of even a woman in good health, and when she would fail to perform the labor demanded he would fly into violent passion and abuse her, using the most indecent, harsh, and profane language. That at one time not more than 15 minutes before her confinement, he compelled her to run after his mule, which he had negligently allowed to escape, and, becoming very angry, cursed and abused her because she could not catch or round up the mule, although she did all she could, and from her exertions and the abuse she was seized with labor pains, and soon after was delivered of a child, suffering intensely at the time, and for several days thereafter, and this nearly resulted in the death of both herself and child, which was caused by this unkindness and cruel treatment, he scarcely ever speaking a kind word to her during the suffering. That while they lived together he would often, for nothing, or the most trivial causes, fly into paroxysms of uncontrollable passion towards her, and would curse and abuse her, telling her he wished she was dead, and that he and the children would be better off if she were dead. Sometimes he would become angry with his team when plowing or driving, and would come home and vent his anger upon her. That, beginning almost immediately after their marriage, and down to their separation, he was constantly quarreling at her and abusing her. Once she returned in the night from a neighbor's house, where she had been attending a musical entertainment and found that he had locked her out, and it was with great difficulty that she effected and entrance, and he became angry with her because she had entered, and refused during the succeeding week to furnish her with food for herself and children, causing them great suffering. That about four months ago he became violently angry with her for allowing her mother to visit her, and threatened to kick her out of the house if she did not keep her mother away, and his treatment of her father's family had been such that she has been entirely deprived of their pleasant social intercourse. That she is, both by nature, and by sickness and long suffering brought on by his unkindness and ill-treatment, of a highly nervous and excitable temperament and he, well knowing this, has often, with intention of worrying, annoying, and injuring her both bodily and mentally, said unkind and cruel things to her, which had the intended effect. At one time, because she would not make a deed to him of the place on which they lived, the title to which was in her, he became very angry, and told her that, but for the fact that the title was in her name, he would kick her from it. She refused to make the deed then, but some time afterwards discovered that, in making a deed to one Randall at defendant's request, he had, without her knowledge, fraudulently inserted therein the numbers of the land of their home place, and that through several conveyances the same had been deeded to him. Whereupon, 'unable longer to endure,' etc., she separated from him.

There are other charges in the bill, with a view to having the custody of the children awarded to the complainant, but these need not be set out, as this becomes unnecessary, under our view of the merits of the case upon the evidence.

The answers of defendant to the original and amended bills give a categorical denial of every material allegation therein, adding explanation as to some of the charges, and vindication of conduct in some matters not deemed material by us; but it is unnecessary to recite details, since all through the case the complainant and defendant are in direct antagonism in their allegations and testimony, and thus apparently neutralize each other, leaving us to determine between them by rules of evidence, and by other testimony, as these may dictate.

In the attempt to sustain by evidence the charges of extreme cruelty and of the habitual indulgence of violent and ungovernable temper, the facts are so intermingled as to leave it uncertain, for the most part, to which of those grounds of divorce respectively they are intended to be applied. Many facts being common to each ground, we will apply them indiscriminately, distinguishing others as occasion may require.

The case is one in which there is no allegation of actual violence to the person of complainant, nor any testimony that in the slightest degree points to violence. It must therefore be governed, in respect to cruelty, by the rules of law which relate to divorce for injury inflicted through the mental and emotional nature. In this state it has been held that such injury, when, in effect on health and happiness, it is no less damaging than the effect of blows on the body sufficient to amount to legal cruelty, is good cause for divorce. Donald v. Donald, 21 Fla. 571. But the treatment or abuse or neglect or conduct, whatever it may be, short of bodily violence, that will authorize divorce must be of a character to damage health, or to render cohabitation intolerable and unsafe. The Donald Case goes no further than this; and its doctrine on the subject is approved in Williams v. Williams, 23 Fla. 324, 2 South. Rep. 768. But it may be said further that, in the absence of bodily violence, if threatening or the abuse or mistreatment is of a flagrant kind, to cause reasonable apprehension of such violence, so as to render it impracticable to discharge marital duties because of this apprehension, relief should be granted. Under the authorities cited in the Williams Case, this rule is held to apply in the instance of a single act of violence, and we think in no less applicable, even if there has been no act of violence, where the conduct complained of has given equally strong and reasonable ground for abiding apprehension.

Giving the wife in the case at bar the benefit of this rule, and also of the rule which takes into consideration the effect on her health of the mistreatment charged against the husband there having been no actual violence, we do not find in the evidence satisfactory proof to sustain the complaint for divorce on the ground of extreme cruelty. Apart from her own testimony on material points, which is directly contradicted by the testimony of the husband, there is little to support the charges of the bill. There is enough if general assertions by witnesses of extreme cruelty could be of any avail, but when they come to specify the acts which constitute the cruelty the evidence is altogether insufficient. For instance, as to neglect in supplying food and clothing for the wife and children, which is the most serious ground of complaint, much of the evidence for complainant consists of statements made by her to neighbors. Fanny Robles says: 'She came to our house once, saying she was hungry, and wanted some fresh meat; that she had none at home; that she hadn't anything to eat. She only came this once for something to eat.' But she says also: 'I have been there [house of the parties] when he had plenty, and still I have been there at other times when he had scarcely anything at all in his house to eat. On time he had only a barrel of flour in his house. If he had anything else there, it was certainly not in his cupboard, store-room, or kitchen. * * * I have known this to occur often.' Then she tells how the children would run to the cupboard for something to eat when they were brought to her house. As to clothing, this witness...