Robinson v. Robinson , 66 N.H. 600 ( 1891 )

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 harm, do not amount to legal cruelty; they are high moral offences 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; and 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 gloss violations of duty, but they go no further: they cannot make men virtuous; and as the happiness of the world depends upon its virtue, there may be much unhappiness in it which human laws cannot undertake to remove.

"Still less is it cruelty when 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, though the court' will not absolutely exclude considerations of that sort where 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 been always 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 till 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 of legal relief; people must relieve themselves as well as they can by prudent resistance, — by calling in the succours 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 Con. 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 Ph. Ecc. 111 (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, 1 Add. 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). "Where 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 consequence, 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, 4 Hagg. Ecc. 263, 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." Lockwood v. Lockwood, 2 Cur. Ecc. 281, 283 (1839).

In Chesnutt v. Chesnutt, 1 Spinks 196 (1854), one of the charges against the defendant was that "he used obscene and blasphemous language, was constantly intoxicated, and thereby occasioned his wife great mental suffering and bodily ill health." The court (Dr. Lushington) say, pp. — 188, 191, — "Here is no charge either of bodily violence inflicted, or of threats of personal ill treatment. However disgusting the use of the language charged, if proved, may be — however degrading habits of intoxication — however annoying to a wife, especially the wife of a gentleman and a clergyman, — these facts standing alone do not constitute legal cruelty. If it be said that the consequences to the wife are mental suffering and bodily ill health, I do not think that the case would be carried further. The same might be said of other vices, — of gaming for instance; of gross extravagance, to the ruin of a wife and family; — all these might occasion great mental suffering, and, consequent thereon, bodily ill health to the wife; but they do not constitute legal cruelty. Such consequences, to be the subject of legal redress, must emanate from bodily ill treatment, or threats of the same. Such I apprehend to be the clear line of distinction drawn by all the authorities. . . . Mental anxiety, excitement, bodily illness, though occasioned to the wife by the conduct of the husband, do not constitute cruelty, except such conduct was accompanied with violence or threats of violence."

In Barrere v. Barrere, 4 Johns Ch. 187, 189 (1819), Kent, Ch., after reciting the facts, says, — "There can be no doubt that these acts of bodily violence and harm amount to that cruelty against which the law intended to relieve. Mere petulance and rudeness and sallies of passion might not be sufficient; but a series of acts of personal violence, or danger of life, limb, or health, have always been held sufficient ground for a separation by the canon law, which is the law of England upon this subject. Though a personal assault and battery, or a just apprehension of bodily hurt, may be ground for this species of divorce, yet it must be obvious to every man of reflection that much caution and discrimination ought to be used on this subject. The slightest assault or touch in anger would not surely in ordinary cases justify such a grave and momentous decision."

"The cruelty which entitles the injured party to a divorce consists in that kind of conduct which endangers the life or health of the complainant, and renders cohabitation unsafe. If the charges in this bill are true; if this defendant permits her passions so far to usurp the throne of reason as to allow her to . . . commit personal violence upon her husband in his sleep, . . . to threaten his destruction by poison and even to go so far as to procure a deadly drug for that purpose, not only his health, but even his life, is in actual danger from her violence." Perry v. Perry, 2 Paige 501-503 (1831). "It is true, that to constitute scevitia known to the civil law, . . . it is not necessary there should be an infliction of bodily injury, or any act of personal violence committed. It is sufficient if there be a series of unkind treatment accompanied by words of menace creating a reasonable apprehension that bodily injury may result to the wife unless prevented. . . . It [cruelty] must be actual personal violence, menaces or threats, creating reasonable apprehension of bodily harm." Mason v. Mason, 1 Edw. Ch. 278, 291, 292 (1832). The courts of Massachusetts held substantially the same doctrine. Hill v. Hill, 2 Mass. 150 (1806); Warren v. Warren, 3 Mass. 321 (1807); French v. French, 4 Mass. 587 (1808).

The question what constitutes extreme cruelty first came before this court in 1834, in Harratt v. Harratt, 7 N.H. 196. The evidence proved that the defendant had threatened to take the plaintiff's life, had treated her harshly and with neglect in sickness, and had ceased to provide for her support; it also tended to show a reasonable apprehension that cohabitation might subject the plaintiff to disease. The court, Parker, J., after citing with approval Warren v. Warren, Evans v. Evans, and some of the other foregoing cases, say "That cruelty may be extreme without blows cannot be doubted; and we have no difficulty in holding that where the causes are grave and weighty, and such as to show an impossibility that the duties of the married life can be discharged — when violence is menaced, and there is reasonable apprehension of danger to life, limb, or health — the case comes within our statute, and that the court ought not to wait until the hurt is actually done. There has been more doubt whether the case before us, on the facts in evidence, comes clearly within the principle. The evidence, however., shows that the life of the libellant has been threatened, and we cannot say that there is no probability that violence will be resorted to; and as there is further evidence of harsh treatment and neglect, and of circumstances tending to show that cohabitation would be attended with danger to the health of the libellant, the court is of opinion that all these circumstances combined bring the case within the statute." In Poor v. Poor, 8 N.H. 307, 315, 316, decided in 1836, Richardson, C. J., says, — "What, then, is extreme cruelty? It is not mere austerity of temper, petulance of manners, rudeness of language, a want of civil attention, or even occasional sallies of temper, if there be no threat of bodily harm. In the judgment of law, any wilful misconduct of the husband which endangers the life or health of the wife, which exposes her to bodily hazard and intolerable hardship and renders cohabitation unsafe, is extreme cruelty. And in order to amount to such cruelty it is not necessary that there should be many acts. Whenever force and violence, preceded by deliberate insult and abuse, have been once wantonly and without provocation used, the wife can hardly be considered safe."

To constitute extreme cruelty, direct bodily injury, actual or threatened, was essential. Threats of personal violence, unless of such a character as to create "in a mind of ordinary firmness" reasonable apprehension that they might be executed, were not legal cruelty. To the exceptionally sensitive and timid wife, put in actual and constant fear of limb or life by conduct not calculated to have that effect on a person of normal and ordinary sensibility, the law of divorce afforded no relief. The infliction of mere mental pain, however seriously it might injure health or endanger reason, was not legal cruelty. A husband might violate all the proprieties and decencies of social life; he might call "his virtuous wife a strumpet, saying so not to herself alone, but before everybody," although "as far as suffering was concerned he had better kick her" (Paterson v. Paterson, 3 H. L. Ca. 308, 313); he might bring prostitutes into his family and seat them at his table, — make his house a brothel, — and the law, if it would justify the wife in leaving him, afforded her no other remedy. For such conduct as that described in Wood v. Wood, 141 Mass. 495, and the injury caused to "her health by its effect upon her feelings," the wife was then, in New Hampshire, as she is now in Massachusetts, remediless. Constant, innumerable, and nameless indignities of speech and action, each possibly petty in itself, might cause mental anguish less endurable, more hurtful to physical well-being, and more likely to overturn reason, than any degree of pain produced by blows; they might make life intolerable and death welcome, yet they were not legal cruelty. The sufferer's only remedy was "by prudent resistance," and "by calling in the succours of religion and the consolations of friends."

In consideration of this state of the law, the legislature, in 1840, enacted that "divorces . . . shall be decreed in favor of the innocent party . . . when either party shall so treat the other as seriously to injure health or endanger reason." Laws 1840, c. 573, s. 1. This provision in substantially the same language has ever since remained in force. Rev. Stats., c. 148, s. 3. In the revision of 1867 it was verbally modified to read as follows: "A divorce . . . shall be decreed . . . V. When either party has so treated the other as seriously to injure health. VI. When either party has so treated the other as seriously to endanger reason. Gen. Stats., c. 163, s. 3; G. L., c. 182, s. 3. The provision is to be construed in view of the mischief it sought to cure. It was intended to provide for a divorce of the parties in cases of the character referred to, where the conduct complained of did not fall within the established definition of extreme cruelty. It gave by legislation the relief which the English courts, pressed by the weight of the same considerations, have gone far to afford (Paterson v. Paterson, 3 H. L. Ca. 308, 318, 319, 325-329 (1849), Kelly v. Kelly, L. R. 2 P. D. 31 (1869), Mytton v. Mytton, 11 P. D. 141 (1886), and Bish. Mar. Div. (4th ed.) s. 722 n.), and which the courts of some jurisdictions under like pressure have afforded by a more liberal interpretation of the term "cruelty." Butler v. Butler, 1 Par. Eq. Cas. 329; Powelson v. Powelson, 22 Cal. 358; Latham v. Latham, 30 Grat. 307; Cole v. Cole, 23 Iowa 433; Gholston v. Gholston, 31 Ga. 625; Palmer v. Palmer, 45 Mich. 150; Carpenter v. Carpenter, 30 Kan. 712; McMahan v. McMahan, 9 Or. 525; Kelly v. Kelly, 18 Nev. 49; Jones v. Jones, 60 Tex. 460.

Whether one party has been so treated by the other as seriously to injure health or endanger reason is a pure question of fact. It cannot be declared as matter of law that any particular treatment may not have that effect. The gist of these causes of divorce is the injury to health and the danger to reason. Conduct which to a serious extent produces either, though not intended to have such a result, — though it be "purely self-regarding," and not "directed towards" or "forced even upon the knowledge of" the other party "otherwise than by the usual intimacy of matrimony" (Wood v. Wood, 141 Mass. 495, 496), — is a cause of divorce. Any behavior of one party which affects the other physically or mentally is treatment within the meaning of the statute. A narrower sense cannot be given to the language used without ignoring the extent of the evil to be cured, and depriving a large proportion of those who suffer from it of the protection the legislature intended to provide for them. The purpose of the legislature was to make the remedy co-extensive with the mischief. A malevolent motive in the party complained of need not be shown. Divorce is not punishment of the offender, but relief to the sufferer. Whether the behavior proved is a sufficient ground of divorce depends on the question whether it has seriously injured health or endangered reason. This is the sole test. The question is, not whether the treatment reasonably ought, or could reasonably be expected, seriously to injure the health or endanger the reason of a person of ordinary intelligence and mental strength, but whether it has in fact had that effect upon the health or reason of the person complaining. A course of conduct which would drive one person crazy, might have no effect on, or might even be grateful to, another and perhaps more sensible or less sensitive person; but he or she whose reason is imperilled by it is not therefore to be compelled to endure the treatment. That the conduct complained of is in itself innocent, or even laudable, and is pursued from a sense of duty, does not afford a sufficient reason for requiring the party injured by it to submit to the destruction of health, reason, and life. The abstract reasonableness of the treatment, or its effect upon reasonable persons of ordinary firmness, does not enter into the question. If it did, the redress intended by the statute could not in many cases be obtained. The provision was designed for the benefit of the sensitive — not excepting the abnormally sensitive — and not for the insensible and apathetic, whom nothing but blows can affect. It was intended to reach and provide relief in a class of cases where extreme cruelty as defined by law cannot be established — cases, among others, of slow and continuous mental torture, destructive of health or reason, and caused by conduct not necessarily wrongful, possibly even praiseworthy, in itself, and made a cause of divorce only because of its effect upon an abnormally sensitive mind.

The injury, and in greater part the suffering, caused by acts tending to the destruction of health or reason may not depend upon the intention with which they are done. Whether they are done with or without malice, they may be in their effect equally hurtful and destructive. In the judgment of the legislature, it is better that the marital relation be dissolved, than that by its continuance the health or reason of either party be destroyed. Whether the legislation is wise or unwise is a question upon which opinions may differ; but with it the court has no concern. Its duty is to enforce the law as it is found to be. To hold that to warrant a divorce treatment seriously endangering health or reason must be wilful, malicious, or malevolent would repeal the statute.

It is found that the defendant's conduct has seriously injured the plaintiff's health, and the court cannot say that the finding is not warranted by the evidence. Jones v. Jones, 62 N.H. 463, 467.

Divorce decreed.

SMITH, J., did not sit: the others concurred.