Hale v. Hale , 47 Tex. 336 ( 1877 )

Moore, Associate Justice.

The parties to this action mutually seek to obtain a divorce, upon the ground of excesses, cruel treatment, and outrages of' such a nature as to render their living together unsupportable, charged by them, respectively, in the petition and cross-bill. Heither of them desiring a jury, the case was tried by the judge, who, after considering the law and facts upon which they respectively relied, rendered judgment, refusing to grant a divorce to either of them, upon the case made under the petition of the plaintiff, or on the cross-bill filed by the defendant. From this judgment both parties prosecuted an appeal; and each of them have, in effect, assigned for error—

1st. The action of the court in sustaining the exceptions of the one to the pleadings of the other.

2d. In ruling, that, owing to their mutual recrimination, neither of them is entitled to a divorce.

3d. The refusal to grant a decree in favor of either party, on the law and facts as submitted on the final hearing.

An additional assignment is also made by appellant, that the court erred in excluding the evidence of admissions made by defendant before and after the separation, and made, at the time, to their mutual friends, while trying to effect a settlement between them. In regard to this last assignment, however, it will suffice to say, that we find in the record no ruling of the court to which it can apply. If there was any evidence, of the character referred to, excluded by the court, no exception to its action seems to have been taken, or if so, the evidence of it has not been preserved and brought up with the record, so that we can take notice of or act upon it.

The recital of the excesses, cruelties, and outrages, with which the parties mutually charge each other in the petition and cross-bill, and their respective amendment, fills nearly if not quite one hundred pages of the record, and it has taken two hundred and fifty or more pages to exhibit to us the evidence adduced upon the trial in support of the charges made by them, respectively, in their pleading.

"We have endeavored to give such patient and careful examination to the questions suggested for our determination as this voluminous record has required, and such as the painful sympathy which such criminations and recriminations between husband and wife, as is here exhibited, will always arouse, and a proper regard for social order and the general good of society imperatively demands. Yet, while this examination has painfully impressed us with a thorough conviction of the existence of a condition of domestic infelicity, into which the parties to this action have fallen, through their mutual irascible and ungovernable tempers, which forebodes a most unhappy future for themselves and their children, still, we cannot say there is any error in the court below, for which the judgment should be reversed, without a departure from the settled rules of practice and decision governing this court; nor can we grant a-decree of divorce to either of these parties, in the attitude in which the record comes before us, unless we were at liberty to permit our sympathy for the unhappy condition in which, through their imperfections of temper, they have in all probability suffered their present and future domestic peace and happiness to he completely ingulfed, to control our judgment, instead of taking the plain provisions of the statute and the well-established course of decisions of the court as our guide.

The record not only fails to exhibit any basis whatever to support the first assignment of error, but, on the contrary, it clearly shows that it is entirely without foundation. There was no exception or demurrer by the defendant to the petition, as finally amended, or by the plaintiff to the cross-bill, as also amended by defendant; but the case went to the court, and was tried upon the pleadings as presented by the parties. True, at an earlier state of the ease, demurrers were sustained to the pleadings of each party; but they were mutually permitted to amend. None of their averments were stricken out by the ruling of the court; and as the trial was had on the averments, in the original as well as amended pleadings, if the facts proved were not such as to require a decree, certainly no injury can have resulted from the action of the court on the demurrer, even if its ruling upon them should have been different. Nor can we say that the court erred in its conclusion upon the testimony. It is a familiar and well-established rule, that where a jury is waived, the same presumptions are to be indulged in favor of the correctness of the judgment of the court upon the facts as is applied in support of the verdict of the jury.

If it should he granted that the evidence in the record would have justified a different conclusion from that at which the court arrived, and even if we could say that a different conclusion would have been more satisfactory to our minds, it would be of no moment; for it certainly cannot be denied that there is not wanting in the record evidence of a contrary tendency, amply sufficient to support the judgment. As this is the case, the judgment cannot be disturbed, unless we would overturn the settled rule of decisions of the court from its very beginning to the present time, for the sake of reaching a desired conclusion in a special case. Nor can we say, from our examination of the record, that the common-law doctrine, as to the effect of recrimination in suits for divorce, had anything whatever to do with the judgment of the court in this case. When a party asks of this court a reversal of a judgment of the District Court, he should be able to put his finger upon the very error of which he complains. It is not sufficient, if it merely appears that possibly the court may have fallen into error. But if the court was influenced by the considerations attributed to it by counsel, and could, as was said in the argument of the case in this court, have granted a divorce to either of these parties on the evidence adduced by them respectively, but for the recriminatory facts which they mutually proved, we are by no means prepared to say that, in so holding, an error was committed, for which the judgment should be reversed. We are not, however, to be understood by this remark as intimating that in no case, and under no state of circumstances, should a divorce be granted, if the plaintiff is also guilty of an act of any character for which the defendant might claim a divorce. There are, unquestionably, well-established limitations in regard to this character of defense in such actions, to which, however, it is unnecessary for us to specially advert at present. The general doctrine, that recrimination is a valid defense, though the divorce is sought upon other grounds than adultery, may, nevertheless, be said, on the very highest authority, to “ rest in the clearest reason and in exact justice.” (2 Bish. on Mar. and Div., sec. 74.) Unquestionably is this so, when the recriminatory fact is of the lik;e character as the act of the defendant, for which the divorce is sought; and more especially must it be so, when the act or conduct upon which the plaintiff’s action is founded, is induced or occasioned by the act or . conduct of the plaintiff) and was in retaliation of it, unless the matter complained of was so grossly in excess of the provocation, that it ordinarily cannot be said to have been occasioned by it; for “some allowance should be made for human frailty, and it would be unreasonable to require the matrimonial conduct of the plaintiff to be quite without blemish, as a condition upon which alone he could be permitted to carry on his suit for the defendant’s greater wrong.” But it is not sufficient that the plaintiff:’ should be merely less in fault than the defendant. He has no cause to complain or right to be relieved from the obligation of a contract which he has violated in a like manner as the defendant; and where the difference between himself and the defendant is merely a slight difference in their degree of guilt, the court will not interfere. In such cases the parties are “ suitable and proper companions for each other,” (Wood v. Wood, 2 Paige, 108,) and “ may live together, aiid find sources of mutual forgiveness in the humiliation of mutual guilt.” (Beeby v. Beeby, 1 Hag. Ex., 789; 2 Bish. on Mar. and Div., ch. 5.)

There is no error in the judgment, and it is therefore affirmed.

Affirmed,