Ring v. Ring
| Decision Date | 03 June 1903 |
| Citation | 44 S.E. 861,118 Ga. 183 |
| Parties | RING v. RING. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. "Cruel treatment," within the meaning of section 2427 of the Civil Code of 1895, which provides that such treatment shall be a ground for divorce, is the willful infliction of pain, bodily or mental, upon the complaining party, such as reasonably justifies an apprehension of danger to life, limb, or health. Odom v. Odom, 36 Ga. 286 approved and followed; Gholston v. Gholston, 31 Ga 625, and Myrick v. Myrick, 67 Ga. 771, doubted criticised, and distinguished.
2. It follows that the habitual and intemperate use of morphine, unaccompanied by any conduct coming within the definition laid down in the preceding headnote, is not such cruel treatment as the law recognizes as a ground for divorce.
3. The intention to wound is a necessary element of the cruel treatment for which a divorce is allowed.
Error from Superior Court, Bibb County; W. H. Felton, Jr., Judge.
Action by G. W. Ring against M. S. Ring. Judgment for plaintiff, and defendant brings error. Reversed.
M. W. Harris, for plaintiff in error.
John P. Ross, for defendant in error.
As will be seen by reference to the case of Ring v. Ring, 112 Ga. 854, 38 S.E. 330, the defendant in error in the present case at first brought a suit for divorce against his wife, Mrs. Mamie S. Ring, under section 2427 of the Civil Code of 1895, on the ground of her habitual intoxication from the intemperate use of morphine and other opiates. The jury returned a verdict finding a total divorce for him, but the judgment of the lower court was reversed by this court, on the ground that "'intoxication,' as used in section 2427 of the Civil Code of 1895, which provides for the granting of a divorce on the ground of 'habitual intoxication,' means drunkenness produced by alcoholic liquors, and not the condition resulting from the excessive use of morphine." The plaintiff then dismissed his suit, and brought the present action, which is based upon the ground of cruel treatment of the plaintiff by the defendant, consisting of the habitual use of morphine. The petition sets forth various acts of misconduct on the part of the defendant, but it affirmatively appears from the allegations made that these acts were committed while the defendant was under the influence of morphine, and as a direct result of the use of that drug; and the petition, taken as a whole, presents definitely, as a ground of divorce, alleged cruel treatment, consisting in the persistent and intemperate use of morphine. To this petition the defendant demurred generally, "and particularly, for the reason that the allegations of fact therein contained do not constitute cruel treatment under the law." This demurrer was overruled. The defendant also filed an answer, and the issue thus formed was submitted to a jury, who found for the plaintiff a total divorce. The defendant made a motion for new trial, which was denied, and to the overruling of her motion and of her demurrer she now excepts.
It is agreed by counsel on both sides that the only real questions before this court are made by the demurrer, and the general grounds of the motion for a new trial that the verdict was contrary to law and the evidence. It may be said at the outset that the evidence for the plaintiff fully sustained the allegations of his petition, and in this connection the following, quoted from the testimony of the plaintiff as contained in the brief of evidence, is worthy of notice as bearing upon the real meaning and intent of the petition: We have, then, presented for our determination the clear-cut question, is the habitual use of morphine such cruel treatment as will constitute a ground for divorce under the laws of Georgia?
1, 2. This court has, both by approval of definitions given by other courts, and by its own rulings, set forth its understanding of the meaning of the "saevitia" of the English law, or "cruel treatment," as it is known in our own. In the earliest case on this subject to be found in our reports, that of Head v. Head, 2 Ga. 191, Nisbet, J., delivering the opinion, held that the English law, as construed by the courts of that country, prevailed in this state, and that only for the causes prescribed by the common law, as of force in England at that time, could divorces be granted here. On page 206, the court said: "In determining what is saevitia by the ecclesiastical law, it has been adjudged to be necessary that there should be a reasonable apprehension of bodily hurt; the causes must be grave and weighty, and show a state of personal danger, incompatible with the duties of married life; mere austerity of temper, petulance of manners, rudeness of language, a want of civil attention, even occasional sallies of passion, if they do not threaten bodily harm, do not amount to the cruelty against which the law can relieve." In Smith v. Smith, 84 Ga. 440, 11 S.E. 496, 8 L.R.A. 362, the Head Case was considered, and the conclusions therein announced distinctly upheld, to the effect that the English ecclesiastical law, as there held, was in effect in Georgia until the passage of the act of February 22, 1850. The act of 1850 (Civ. Code 1895, § 2426 et seq.), in setting out the grounds for divorce in this state, did not define cruel treatment, nor make any attempt to change the construction already placed upon the expression by this court. It did change the law so as to authorize the jury trying the case to grant a total or partial divorce on this ground, according to the circumstances of the case. Prior to its passage, the common-law rule prevailed in Georgia, and for cruel treatment only a partial divorce could be procured. It is difficult for us to believe that the Legislature intended, at one and the same time, to make more far-reaching the effects of cruel treatment, and to put a more lax construction upon that expression. The act of 1850 was probably brought about by the decision in the Head Case, cited supra, as the effect of the judgment rendered in that case was to cut off divorces on some of the grounds on which they had previously been granted in Georgia, and the purpose of the act was evidently to extend the law so as to increase the number of grounds upon which divorces could be obtained. The court had, in the Head Case, expressly approved the definition of the term "cruel treatment" given by the English courts, and there is nothing in the act of 1850 to indicate that the General Assembly had any intention to give it a different construction.
We will now consider what were the rulings of the English ecclesiastical courts on which the judgment in the Head Case was based. In the leading case of Evans v. Evans, 4 Eng. Ecc. Rep. 310, decided in 1790, the court declined the task of laying down a direct definition of the term, but said: In the case of Westmeath v. Westmeath, 2 Haggard, 238, the court quotes from the Evans Case, and says that the ecclesiastical courts have been uniformly strict in holding that, to make out a case of legal cruelty justifying a divorce, there must be proof of actual injury, or of real apprehension of injury as it may affect the safety or the health of the person. In all cases where the infliction of mental suffering has been held to justify a divorce, except where the decisions were controlled by peculiar statutes, the judgments have proceeded upon the idea that the mental anguish caused was so grievous as to endanger the health of the complaining party.
We have already seen that prior to the passage of the act of 1850 the English definition of the term "cruel treatment" was the one adopted by our court, and this doctrine prevailed until 10 years after the passage of that act, as is shown by the opinion of Judge Benning in the case of Buckholts v Buckholts, 24 Ga. 238, where, on page 244, the following language was used: "And may we not lay it down for law that, to make out a case of cruelty, 'there must be either actual violence committed, attended with danger to life, limb, or health, or there must be a reasonable apprehension of such violence'?" Citing Bish. Mar. & Div. § 454, note 1. In the case of Johns v. Johns, 29 Ga. 722, Chief Justice Lumpkin, in passing upon a charge given by the trial judge where a husband was seeking a divorce from his wife on the ground of cruel treatment, recognized the doctrine that, to sustain a suit for divorce on this ground, the libelant must show that there was a reasonable apprehension of danger from living with the defendant, and held that any conduct of the husband tending to show that there was no such apprehension on...
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