Shutt v. Shutt

Alvey, C. J., delivered the opinion of the Court. The bill in this case was filed by a husband against his wife for a divorce. The prayer of the bill is for a decree a vinculo matrimonii, but there is no ground shown for any such decree, and the Court below only decreed a divorce a mensa et thoro, which the wife resists, and the husband seeks to maintain. The bill charges cruelty of treatment and habitual drunkenness by the wife, as the 'grounds for divorce; and while some of the allegations of the bill are over-stated, and others given undue color, the proof shows a case of matrimonial infelicity that is truly deplorable.

The case is an unfortunate one both for the husband and the wife. The parties have been married since 1866, but have had no children. They have lived in respectable society, and until • the unfortunate habit was contracted by the wife of over-indulgence in the stimulants of intoxicating drink, they appear to have lived in entire harmony,' and in a state of. hapjiiness as husband and wife. ¹⁹⁵ It appears that the wife had been for some years sorely afflicted with what the physician terms bronchial asthma, intermittent attacks of coughing, palpitations of the heart and difficulty of breathing; and to such an extent was she so afflicted, that she would have fainting spells which at times threatened the termination of her life. It was while she was so afflicted, and as means of relief, that she resorted to the use of brandy and gin, and perhaps other alcoholic stimulants.

It is shown that the habit in the use of these stimulants grew upon her gradually, and from moderate use in the beginning it became immoderate, and finally ran into distressing excesses. This habit was acquired with the knowledge, and under the immediate observation of the husband; and while the proof shows that he was kind and indulgent to his wife, it is not shown that he ever attempted to arrest or break up this unfortunate habit, by the resort to any means of cure and reformation, or even of temporary restraint. We shall not attempt any recital óf the details of the evidence. Such recital could serve no useful purpose, in the view we have of this case.

Suffice it to say, that the charge of cruelty of treatment by the wife, in the sense of bodily harm or serious danger to health of the husband, is not supported in proof, as the law requires, to make it the ground for a decree of separation. The only personal violence offered to the husband, as shown by the proof, occurred on some two or three occasions, when he had interposed between the wife and his mother; the latter living in the house of her son, and as between whom and the wife there seems to have been difficulties and frequent boisterous altercations; and which, upon two or three occasions, resulted in personal violence to the mother-in-law. These outbreaks of passion and violence, as shown by the proof, never occurred except when the wife was under the influence of drink, and was without self-control. All this, though disgusting and repre ¹⁹⁶ hensible to the greatest degree, does not establish the fact of such cruelty of treatment of the husband, according to the requirements of law, as will justify a decree of divorce on that ground.

Indeed, we do not understand it to be seriously contended, that, as an independent ground, cruelty of treatment is sufficiently shown to justify a decree. The ground principally relied on, in support of the decree below, is the habit of intoxication, and its attendant consequences, to which we have referred, as constituting a case of excessively vicious conduct by the wife, within the meaning of the statute. The terms, “excessively vicious conduct," are very indefinite; and of the multitude of vices to which humanity is subject, the Legislature has given no intimation as to the class or character of vices to which the statute was intended to apply. It would, however, be difficult to suppose that it was intended to apply to all the multiform vices to which mankind is liable, though indulged in to an excessive degree.

The terms, “excessively vicious conduct," were originally employed in the Act of 1841, ch. 262, which was the Act that first conferred jurisdiction on the Court of Chancery to grant divorces in this State; and from that time to the present, in the multitude of applications for divorces for various causes, we are not aware that it has ever been held, or even suggested, that the habit of drunkenness, of either man or woman, was sufficient ground per se for a divorce. It may, no doubt, in connection with other grave offences against the marriage relation, be considered as an element in the habit ancl conduct of the party complained of; but, as an independent ground, drunkenness has never been considered, either jn this State or in England, as furnishing cause to justify a divorce. It is true, in some of the States of this Union there are statutes that make habitual or continual drunkenness a cause for divorce; and we must suppose ¹⁹⁷ that if it had been the intention of the Legislature of this State to make drunkenness a cause of divorce, it would have been so expressly declared, and not left to doubtful construction or implication. If the terms of the statute were construed to embrace such a cause of divorce, it would, of course, have mutual application; that is, it would furnish ground for divorce upon the complaint of the wife against the husband equally as upon the complaint of the husband against the wife; and so it would apply to all grades and conditions of society.

And if the statute were so construed, and the Courts opened to applications founded upon that cause, it would not be difficult to foresee that applications for divorces would immensely increase, with all their attendant evil consequences, and that facility would be furnished for obtaining divorces that has not hitherto been