Shuster v. Shuster

• Decision Date: 06 November 1902
• Citation: 92 N.W. 203,3 Neb. [Unof.] 610
• Parties: SHUSTER v. SHUSTER.
• Court: Nebraska Supreme Court

3 Neb. [Unof.] 610

92 N.W. 203

SHUSTER

v.SHUSTER.

Supreme Court of Nebraska.

Nov. 6, 1902.

Commissioners' opinion. Department No. 2. Appeal from district court, Otoe county; Jessen, Judge.

“Not to be officially reported.”

Suit by Lydia E. Shuster against James E. Shuster. Decree for defendant, and plaintiff appeals. Affirmed.W. F. Moran, for appellant.

D. T. Hayden, W. W. Wilson, and G. W. Cornell, for appellee.

POUND, C.

The appellant sued her husband for a divorce alleging extreme cruelty, in that on numerous occasions he had used vile and insulting language toward and about her, and had made threats of violence. The husband denied each and all of the charges, and filed a cross-petition praying for a divorce by reason of vile and insulting language used toward him, cruel treatment of the child of the marriage, and alleged violent assaults made upon him by the plaintiff. Each party charged the other with repeated false accusations of infidelity. The trial court, after hearing a large amount of evidence, dismissed both petitions. It may be questioned whether the petition states a cause of action, within the rule laid down in Ellison v. Ellison (Neb.) 91 N. W. 403. Assuming that it does, we think the decree of the district court has ample support in the evidence. While habitual use of rough and vile language may amount to cause of divorce, much must depend upon the character of the parties, their situation in life, and the degree of cultivation and refinement they exhibit. The marriage relation is designed to continue as long as both the parties shall live, and is not to be dissolved for light or trivial causes. Brotherton v. Brotherton, 12 Neb. 72, 10 N. W. 543, 544;Dunn v. Dunn, 26 Neb. 136, 42 N. W. 279. Language which would so wound the sensibilities of a woman of cultivation and refinement as to amount to cruelty might occasion little or no discomfort to one accustomed to rougher surroundings. Where the testimony adduced in a suit for divorce tends to show that each party was addicted to the use of profane language about the home and in addressing the other, the court is certainly justified in refusing to grant a divorce to either on that ground. Mere rudeness of language is not of necessity extreme cruelty. As pointed out in Ellison v. Ellison, supra, in order to constitute extreme cruelty it must have the effect of so grievously wounding the feelings or destroying the peace of mind of the plaintiff as to impair health or utterly destroy the legitimate ends of matrimony. Where both parties habitually indulge in such language toward each other, they can scarcely claim that their sensibilities have been unduly disturbed. The plaintiff produced several witnesses who testified that defendant had used vile and insulting language to his wife on many occasions in their hearing. She also adduced evidence to show that she had received some bruises on one occasion, when a dispute arose. Both plaintiff and her witnesses were very free and explicit in narrating the exact...