Wetherington v. Wetherington

• Decision Date: 11 May 1909
• Parties: WETHERINGTON v. WETHERINGTON.
• Court: Florida Supreme Court

49 So. 549

57 Fla. 551

WETHERINGTON v. WETHERINGTON.

Florida Supreme Court, Division A.

May 11, 1909

Appeal from Circuit Court, Hillsborough County; Joseph B. Wall Judge.

Bill by Mary A. Wetherington against Berry Wetherington for divorce. Decree for complainant, and defendant appeals. Affirmed.

Syllabus by the Court

SYLLABUS

"Extreme cruelty' by defendant to complainant,' which constitutes one of the grounds for divorce under section 1928 of the General Statutes of 1906, and which may be sufficient to warrant a court in granting a divorce, not only refers to and means physical or bodily injuries, but includes as well such conduct of husband or wife as would cause the other continuous and intense mental suffering and danger to health. What conduct will reach the requirements of the rule must necessarily depend upon the facts and circumstances of each case.

Where a husband falsely accuses his wife with want of virtue, having sexual intercourse with another man from whom she had contracted a loathsome venereal disease, and persists in making such false accusation, it may constitute such extreme cruelty as to be sufficient ground for divorce.

Where the evidence is sufficient to warrant a decree of divorce and the awarding of alimony to the wife, an appellate court will not disturb such decree because of conflicts in the evidence.

COUNSEL

Macfarland & Davis, for appellant.

OPINION

SHACKLEFORD, J.

This is a suit for divorce and alimony, instituted by the appellee, as complainant, against the appellant, as defendant. The amended bill, omitting the formal parts, is as follows:

'Mary A. V. Wetherington, of Hillsborough county, state of Florida, the complainant, by leave of this court heretofore had and obtained, files this her amended bill of complaint against the defendant, Berry Wetherington, of the same place, and thereupon your oratrix complains and says: That she is a resident of the said county of Hillsborough and state of Florida, and has been such for more than two years last past, as has also been the defendant, Berry Wetherington. That during the month of January, A. D. 1895, your oratrix and the defendant were married to each other in said county and state, and have resided therein ever since their said marriage. That by said marriage they have five children, to wit: Beula Wetherington, a girl, of the age of ten years; Grace Wetherington, a girl, of the age of eight years; Willard Wetherington, a boy, of the age of five years; Isben Wetherington, a boy, of the age of three; and an unnamed baby boy, who, since the filing of the original bill of complaint in this case, has departed this life.

'Your oratrix further represents unto your honor that during her entire married life to the defendant she has been to him a true, dutiful, affectionate, and industrious wife, and has, in every way that lay in her power, contributed to his happiness and contentment, and has made his home a cheerful and pleasant abiding place; that she has never in any manner whatever given him any cause to be dissatisfied with her, or in any way to be unhappy in his married life; that she has been industrious and frugal, and has done everything in her power to contribute to his material welfare in life; that, notwithstanding these facts, as set forth by your oratrix on oath, the defendant has, without just cause or excuse, during the last several months of their married life grown excessively jealous of your oratrix, or pretended to be so, and has thereby rendered her life extremely miserable; that on the 21st day of July, 1907, at which time the marital relations between your oratrix and the defendant ceased, this conduct, set forth by the defendant, culminated in the defendant coming to your oratrix and directly charging and accusing her with having contracted a loathsome venereal disease, and, without the slightest proof of this being true, declared to your oratrix that she had so contracted this disease from one William Mack Terell, from your oratrix having had sexual interecourse with the said Terell, all of which said charges were totally untrue and without the slightest foundation whatever; that the said William Mack Terell, with whom your oratrix was thus falsely accused with having had intercourse, has been for years in the employ of the defendant, and worked on the place where your oratrix and the defendant resided as a laboring man; that so uncalled for was this charge, so absolutely untrue in every way whatever, and so well known to the defendant to be untrue, and without the slightest foundation whatever, and done only for the express purpose of humiliating your oratrix, that your oratrix, being a virtuous woman, and having at all times been true to her marriage vows, and having never known either the said William Mack Terell or any other man in this capacity, save and except her husband, was so inflamed by this uncalledfor charge on the part of her husband that she then and there stated to him that she would separate herself from him and leave him forever.

'And your oratrix further represents unto your honor that the cruelty of this unjust charge to your oratrix, a delicate and virtuous woman, was far greater to her than any physical cruelty which the defendant would have possibly inflicted on her; that your oratrix is a sickly and weak woman, having suffered from a disease known as 'Woman's Disease,' brought on her from the birth of her first child, and from which she has suffered ever since, has been and is now an extremely nervous and sick woman, all of which condition has been brought upon your oratrix in bearing children to the defendant, which he well knew, and that for the defendant under these circumstances to then subject your oratrix to the terrible and gross insult and cruelty of such a charge as he made was so terrible, and such an extreme of cruelty, that your oratrix in her then nervous condition was for days sick and intensely miserable from the same; that these charges thus made against your oratrix by the defendant have not only seriously affected the mind of your oratrix, but have resulted in great bodily injury to her, in the wrecking and shattering of her nervous system, and that the same did then and does now constitute to your oratrix the most extreme cruelty that the defendant could possibly inflict upon her; that your oratrix then and there told the defendant that he knew his charges were untrue and without the slightest evidence in the world upon which to base the same, and that she would then and there separate herself from him and leave his home and no longer live with him as his wife, all of which your oratrix then and there proceeded to do; that the defendant told your oratrix that, if she left him, he would turn over to her the care and custody of all their five children, whom he realized needed the care and attention of a mother, and that in order to enable her to support said children he would give her one-half of all the property he then had; that your oratrix, on leaving the said defendant, went to the home of her brother, in the said neighborhood where the defendant then and now resides, and took with her all of the children above named; but that since that time the said defendant has taken back to his own place, and without the consent of your oratrix, all of said children who are now living, and now refuses to give them to your oratrix, as he agreed at the time of their separation, as he also refuses to provide for your oratrix in any manner whatever, or to give her any of his property on which to live and support herself.

'Your oratrix further represents unto your honor that, on the day following the separation of your oratrix from the defendant, the brother of your oratrix, with whom your oratrix was then living, went to see the defendant concerning the trouble between your oratrix and the defendant; that the defendant then and there, as your oratrix is informed and believes, and so avers to be true, again charged your oratrix with infidelity to her marriage vows, and with having committed the crime of adultery with the said William Mack Terell, and, although he failed and refused to disclose to your oratrix's said brother the evidence on which he based this terrible charge against your oratrix, reiterated to him his belief that said charges were true; that on the 24th day of July, 1907, and three days following the separation of your oratrix from the defendant, the defendant wrote to your oratrix, and again intimated that your oratrix had the same loathsome disease he had previously charged your oratrix with having, and in said note so written to your oratrix particularly charged the same to be true, and demanded that your oratrix should submit herself to the examination of their family physician in order to ascertain if the same was true, and in said note declared that unless your oratrix did so he would have the same done himself; that although your oratrix realized that the defendant had no such power as he claimed of forcing her to submit to such an examination, yet being desirous that her good name should be cleared of all imputation of such a charge, she immediately went to the office of Dr. H. J. Hampton, in the city of Tampa, Fla., the family physician of your oratrix and the defendant's family; that she there met the defendant, who was present during the entire examination, and at his request, made as above, submitted herself to a physical examination by said physician; that said physician, after so examining your oratrix, declared, and then and there certified, that your oratrix was not suffering from any loathsome or venereal disease, or ever had been in such condition.

'Your oratrix further represents unto your honor that, after leaving the office of...