Russell v. Russell
| Decision Date | 12 May 1930 |
| Docket Number | 28625 |
| Citation | 157 Miss. 425,128 So. 270 |
| Court | Mississippi Supreme Court |
| Parties | RUSSELL v. RUSSELL |
Suggestion of Error Overruled June 9, 1930.
APPEAL from chancery court of Lauderdale county HON. A. B. SCHAUBER Chancellor.
Suit for divorce by Mrs. Eva Russell against G. C. Russell. From a decree for plaintiff, defendant appeals. Reversed in part and affirmed in part.
Reversed in part, and affirmed in part.
Amis, Dunn & Snow, of Meridian, for appellant.
In order to sustain a charge of habitual cruel and inhuman treatment, the conduct of the spouse complained of must be such as will impair the health of the complainant or there must be an apprehension of bodily injury. The misconduct of the party must be such as to affect the life or health or general safety of the complainants.
Kinley v. Kinley, 2 How. 751; Hummer v. Hummer, 68 So. 161; Wills v. Wills, 74 West Va. 709, 82 S.E. 1092; Morris v. Morris, 73 Am. Dec. 615; England v. England, 96 S.E. 174; Stoner v. Stoner, 67 S.E. 1030; Ring v. Ring, 44 S.E. 861; Hawkins v. Hawkins, 3 A. 749; Palmer v. Palmer, 7 So. 864; Bedkman v. Bedkman, 43 So. 923; Hancock v. Hancock, 45 So. 1020; Prall v. Prall, 50 So. 867; Trigo v. Trigo, 105 So. 123; Kellogg v. Kellogg, 111 So. 637; Baker v. Baker, 114 So. 661; Ogden v. Herbert, 22 So. 919; Gormley v. Gormley, 108 So. 307; Du Cros v. Du Cros, 101 So. 407; Parish v. Parish, 113 So. 767; Jones v. Jones, 66 So. 4; Donald v. Donald, 21 Fla. 571; Hayes v. Hayes, 98 So. 66.
Jacobson & Cameron, of Meridian, for appellee.
Act of cruelty need not be malicious to constitute ground of habitual cruel and inhuman treatment. It is sufficient if acts of cruelty create reasonable apprehension of danger to life or health.
McNeil v. McNeil, 125 Miss. 277.
Personal violence is not required in order to constitute such cruel and inhuman treatment as will authorize a divorce.
Decree denying divorce depending on question of fact on which the evidence is conflicting and so balanced that it would support finding either way must stand.
Coffee v. Coffee, 24 So. 262; Smithson v. Smithson, 113 Miss. 146, 74 So. 149.
The findings of fact by a chancellor on disputed questions of fact will not be disturbed unless it is apparent that the conclusions reached by the court were clearly erroneous, resulting in an injustice to the parties against whom same were rendered.
Heard v. Cottrell, 100 Miss. 42, 56 So. 277; Lott v. Hull, 104 Miss. 308, 61 So. 421; Southern Plantation Co. v. Kennedy Heading Co., 104 Miss. 131, 61 So. 66; Jackson v. Banks, 144 Miss. 392, 109 So. 905.
Argued orally by Ed. Snow, for appellant, and by Chas. B. Cameron, for appellee.
The appellee sued her husband for divorce and alimony and for the custody of their only child, an infant. A motion was made by her for alimony pendente lite and for an attorney's fee, the decision of which was deferred to the final hearing. The decree dissolved the bonds of matrimony, awarded the appellee the custody of the child, fifty dollars per month as permanent alimony, fifteen dollars per month for the support of the child, and an attorney's fee of two hundred fifty dollars. The record does not disclose that the motion for alimony pendente lite was passed on. The ground on which the divorce is sought is the seventh provided by section 1669, Code of 1906, section 1479 of Hemingway's 1927 Code; i. e., habitually cruel and inhuman treatment. The appellee's evidence in support of this charge is, in substance, as follows: The parties were married in Meridian in April, 1920. Both of them were then at work, the appellee as a stenographer and the appellant as a flagman on a railroad; his run being from Meridian to Birmingham and return. Each continued at work. They lived after their marriage in the home of the appellee's mother along with other members of the mother's family. In 1923 the appellant became dissatisfied with the way in which the appellee was spending their money, and, after quarreling with her because thereof, left her and remained away about a month, during which time he published notice that he would not be responsible for credit extended to the appellee. At the expiration of this month, he returned to the appellee and acknowledged that he was in the wrong. At his request and on his insistence an agreement was then entered into by which the monthly earnings of the appellant and the appellee were to be pooled, and their living expenses, the premiums on the appellant's life insurance, and some other minor expenses were to be paid out of the aggregate of their earnings, and the remainder was then to be divided equally between them, each paying his or her own personal expenses. The appellee was earning one hundred fifty dollars a month and the appellant earned from one hundred seventy-five to two hundred dollars a month. Under this arrangement both of them saved money.
The appellee had two diamond rings valued at seven hundred fifty dollars which the appellant had given her before their marriage, one as an engagement ring and the other as a Christmas present. After their first separation, the appellant took possession of the rings and would not surrender them to the appellee until she agreed in writing that they belonged to him and would be returned to him should she "fail to move or go with him to any home that he might request her to go, or fail to cooperate with him as a wife." They continued to live with the appellee's mother for about eight years, when they moved to other quarters and remained there until their separation. The appellant charged the appellee not to permit any of her relatives to visit them. To what extent this injunction was insisted on does not appear. During the eight years they lived with the appellee's mother, the appellant remained away from home two or three times in addition to the first hereinbefore referred to, each time for about a week. The reason therefor does not clearly appear, but seems to have been, according to the appellee, because of some unreasonable dissatisfaction with her on his part.
The appellant drank intoxicating liquors, but to what extent does not appear, and the appellee could recall only two specific instances of his being under the influence thereof. The parties were without children until May, 1928, when their one and only child was born. This child is still living. A short time prior to the birth of the child and when the appellant knew that that event was soon to occur, he, while intoxicated, took the appellee for an automobile ride, and over her protest drove farther and at a greater rate of speed than she desired, and collided with another automobile, shaking up, but not injuring, the appellee or causing her any after inconvenience. The child was born in a hospital, and the appellant neglected her while she was there, and on one occasion expressed regret that the child had been born. The appellee told of some other conduct of the appellant which indicated a lack of consideration for her by him, and it is reasonably clear from her testimony that her association with the appellant was at times disagreeable.
On May 31, 1929, the appellant came in from his railroad run prepared to...
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Russell v. Russell
...in this court, and for alimony and support of the child pending the appeal. In the decision of that cause, which is reported in 157 Miss. 425, 128 So. 270, it was held while the evidence showed that the husband was not without fault, and that he had been guilty of rudeness and harsh treatme......