Robinson v. Robinson

• Decision Date: 31 July 1891
• Citation: 23 A. 362,66 N.H. 600
• Parties: ROBINSON v. ROBINSON.
• Court: New Hampshire Supreme Court

23 A. 362

66 N.H. 600

ROBINSON

v. ROBINSON.

Supreme Court of New Hampshire. Grafton.

July 31, 1891.

Case reserved from Grafton county; before Justice Smith.

Libel for divorce by Fred A. Robinson against Janette E. Robinson on the ground of extreme cruelty, treatment seriously injuring health, and treatment seriously endangering reason. The case was reserved for the supreme court. Divorce decreed.

According to the facts as found by the court, plaintiff and defendant were married in 1882, the former being 34 years of age and the latter 42. In 1884 defendant became a believer in the doctrine of Christian science, and after attending the courses of instruction in the science, and receiving the degree of "Doctor of Christian Science," began and continued to practice. Plaintiff did not object to defendant's belief in the doctrine, but was opposed to her practicing as a doctor, which defendant well knew, and frequently requested her to give it up. Twenty witnesses, including four physicians, called by plaintiff, testified as to his health, bodily and mental, since defendant became a believer in Christian science. For the two years after their marriage they appeared to live happily and contented, and plaintiff enjoyed good health. Afterwards his business, which was that of a druggist, suffered. He was naturally proud, sensitive, and reasonably ambitious, besides being somewhat passionate and hasty. He became moody, morose, reticent and inattentive to some extent to his business. He was troubled occasionally with insomnia and loss of appetite, and became generally despondent, discontented, and unhappy from brooding over his changed domestic relations. By advice of physicians, he went to Florida in the spring of 1887 for his health, and experienced temporary relief. Plaintiff complains of ill treatment in one other particular. He suffered at times from spasmodic asthma, from which he got relief by fumigating his sleeping-room,— burning pastiles, etc. He complains that the defendant expressed no sympathy for him in his suffering, and made no offer of assistance, so that he was obliged to occupy a separate sleeping-room, and administer his remedies himself. Defendant denies she neglected him or refused to administer his remedies. On this point there is no balance of evidence in favor of plaintiff. Plaintiff left his wife, July 19, 1889. At the end of six weeks he went back to see whether their differences could be fixed up; if not, he should apply for a divorce. He wished her to give up practice. She refused. He called again. She declined to see him. He then sent a third person, who informed her plaintiff was willing to go back if she would give up practice; that he did not ask her to give up her belief in Christian science. She replied that she did not believe it was her duty to give up practice, and sent word to plaintiff that if he would come back it must be on the basis of Christian science,—meaning that he should permit her to do what she deemed right; to go whenever and wherever she believed it right to go. No further attempt at reconciliation was made. The four physicians called by plaintiff testified that the causes which produced his mental depression, if continued, would seriously endanger his reason. The testimony of the 20 witnesses called by him in regard to his physical and mental condition was substantially uncontradicted. The causes above mentioned operated upon the abnormally sensitive nature of plaintiff, and would, if continued, seriously injure his health and seriously endanger his reason. Defendant, in embracing and practicing Christian science, intended no injury to her husband or his business. She did not believe, and ought not reasonably to have anticipated, that her advocacy of the doctrine, or her practicing as a doctor, would seriously injure his health or seriously endanger his reason. She is sincere in her belief in the truthfulness of the doctrine. It was admitted on the trial that "she treated her husband as well as a wife ought, until she embraced Christian science, barring the failings incident to humanity." Testimony was introduced as to her character for kindness, tenderness, generosity, and peaceableness as woman, wife, mother, and neighbor. The evidence established that her character in these respects is good, and that she possesses all these qualities.

CARPENTER, J. The act of February 17, 1791, declared that "divorces may be decreed for the cause of extreme cruelty in either of the parties." Laws, (Ed. 1830,) 157. What constitutes extreme cruelty was left to be determined by the ecclesiastical common law. "Mere austerity of temper, petulance of manners, rudeness of language, a want of civil attention and accommodation, even occasional sallies of passion, if they do not threaten bodily barm, do not amount to legal cruelty. They are high moral offenses in the marriage state undoubtedly, not innocent surely in any state of life, but still they are not that cruelty against which the law can relieve. Under such misconduct of either of the parties, for it may exist on the one side as well as on the other, the suffering party must bear in some degree the consequences of an injudicious connection; must subdue by decent resistance or by prudent conciliation; or, if this cannot be done, both must suffer in silence. If it be complained that by this inactivity of the courts much injustice may be suffered, and much misery produced, the answer is that courts of justice do not pretend to furnish cures for all the miseries of human life. They redress or punish gross violations of duty, but they go no further. They cannot make men virtuous; and, as the happiness of the world depends on its virtue, there may be much unhappiness in it which human laws cannot undertake to remove. Still less is it cruelty where it wounds, not the natural feelings, but the acquired feelings, arising from particular rank and situation, for the court has no scale of sensibilities by which it can gauge the quantum of injury done and felt, and therefore the court will not absolutely exclude considerations of that sort when they are stated merely as matter of aggravation, yet they cannot constitute cruelty where it would not otherwise have existed. * * * The rule cited by Dr. Bever from Clarke and the other books of practice is a good general outline of the canon law, the law of this country, upon this subject. In the older cases of this sort which I have had an opportunity of looking into, I have observed that the danger of life, limb, or health is usually inserted as the ground upon which the court has proceeded to a separation. This doctrine has been repeatedly applied by the court in the cases that have been mentioned; the court has never been driven off this ground; it has always been jealous of the inconvenience of departing from it; and I have heard no one case cited in which the court has granted a divorce without proof given of a reasonable apprehension of bodily hurt. I say an apprehension, because assuredly the court is not to wait until the hurt is actually done. But the apprehension must be reasonable; it must not be an apprehension arising merely from an exquisite and diseased sensibility of mind. Petty vexations applied to such a constitution of mind may certainly in time wear out the animal machine, but still they are not cases for legal relief. People must relieve themselves as well as they can by prudent resistance,—by calling in the succors of religion and the consolations of friends; but the aid of courts is not to be resorted to in such cases with any effect." Evans v. Evans, 1 Hagg. Const. 35, 38-40, (decided in 1790.) "There must be something which renders cohabitation unsafe, for there may be much unhappiness from unkind treatment and from violent and abusive language; but the court will not interfere; It must leave parties to the correction of their own judgment. They must bear as well as they can the consequences of their own choice. Words of menace are different. If they are likely to be carried into effect, the court is called on. to prevent their being carried on to mischief." Harris v. Harris, 2 Phillim. Ecc. Ill, (1813.) "To amount to cruelty, there must be personal violence or manifest danger of it; for unkindness, reproachful language on the one side, or vain and unfounded fear on the other, do not constitute any case of cruelty which the law can notice." Barlee v. Barlee, l Addams, Ecc. 301,305, (1822.) "Legal cruelty is not established. Quarrels, and, if implicit credit can be given to the witnesses on the libel, much improper language by the husband passed, but there was no conduct to excite in the wife any reasonable apprehension of danger to her person." Kenrick v. Kenrick, 4 Hagg. Ecc. 114, 129, (1831.) "When there is a strong conviction in the mind of the court that the personal safety of the wife is in jeopardy, or where even it may see reasonable ground to apprehend such consequences, it is its bounden duty to protect the wife from risk and danger. In these suits the species of facts most generally adduced are— First, personal ill treatment, which is of different kinds, such as blows or bodily injury of any kind; secondly, threats of such a description as would reasonably excite in a mind of ordinary firmness a fear of personal injury. For causes less stringent than these the court has no power to interfere and separate husband and wife. * * * Short of personal violence or reasonable apprehension of it. I have no authority to interfere." Neeld v. Neeld, Id. 203, 265, 271, (1831.) To constitute 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. This I apprehend to be the substance of the doctrine laid down in Evans v. Evans and in other subsequent cases." Lock wood v. Lock wood, 2 Curt. Ecc. 281, 283, (1839.) In Chesnutt v. Chesnutt, 1 Spinks, 196, (1854,) one...