Opinion
06-25-1897
HEWITT v. HEWITT.
Samuel W. Beldon, for complainant. Jonas S. Miller, for defendant.
(Syllabus by the Court.)
Bill by Edward S. Hewitt against Annie Hewitt for divorce. Decree for defendant.
Samuel W. Beldon, for complainant.
Jonas S. Miller, for defendant.
GREY, V. C. (orally). I will pass upon this question now. The bill is filed by the husband seeking limited divorce from the wife, under the statute, upon the ground of extreme cruelty. The marriage took place in December, 1893, and there is no evidence on either side of any serious dispute between the parties for a period of six or seven months after the marriage. Indeed, the first one of whichevidence is given with any accuracy of date is in October, 1894. On that occasion the difficulty came, not because of any difference between the husband and the wife arising from anything in their own relations, but because of the differences caused by the story related by the stepdaughter to the husband, of a quarrel which had resulted in the exchange of blows between the daughter and the wife, which came about because of some rude play with a spice bag. The next difference between the parties was occasioned by an attempt on the part of the wife to assert her authority over the son, because he had taken some sausages. Another was occasioned by whispering, or a charge of whispering, between the husband and the daughter, about the wife. So, without going into a detailed examination of each of these causes of difference, it is to be observed that they each arose because of some extraneous or foreign influence, which brought about a difference between the husband and the wife. It is perfectly apparent that this woman is a woman of violent temper, and that she does not attempt to restrain herself to the language of modesty and good taste in times of excitement; and I think there were also occasions when she freely permitted her tongue to use foul language. But this alone does not establish extreme cruelty. It may show that it was bad taste in the husband in selecting such a woman as a wife. Violent language, when uttered by a person of that character, is of the least possible weight, because one who habitually accustoms herself to the utterance of violent or foul words when not actuated by violent feelings is simply a pitiable object, and such expressions are looked upon by sensible people as the howlings of a spoiled child. I think this woman has some of these characteristics, and that violence is used by her in language when it does not truly represent any real violence of feeling. At the same time, she has not always restrained herself from violent action, but, on each of the occasions shown, the dispute was brought about by the intrusion of some foreign element. When a woman marries a man, she does not marry his children. That is a thing he must look out for. When he marries, he agrees that he will prefer her before he will consider them. This he undertakes by the mere act of his marriage, and even if they may be right, and the wife wrong, the husband undertakes that he will stand by the wife, to be her helpmeet and adviser, to maintain her in her position. As her husband, he should not take sides with his children, and condemn her for hasty or ill-advised speech or action. He should support her against the children, as the mistress of his household, even if she may err, and be unduly energetic or even violent at times.
This husband seemed to feel that he was called upon to justify and support the side of his children. I do not say the children were wrong. It is not necessary to be passed upon, out he did, on the occasions named, I think, give the wife the sense that he was taking the side of the children, and was disapproving of her assumption to be mistress of the household. That, not extraordinarily, provoked her. Her ebullitions of feelings were each of them, as stated in the evidence, individual instances. They have no relation to each other. There is no evidence here of any malice or ill feeling existing on the part of the wife. Each of the incidents of violent conduct arose separately. No one brought on the other. There is no proof of continuous purpose to treat this man with cruelty. The evidence is that, after each of these quarrels, the husband resumed his relations with his wife. After one of the most violent, after they had come to a personal struggle, which I believe from the testimony resulted in an exchange of blows, they came together, and there is no denial of the fact. They said they were sorry and they resumed their connubial relations in a sensible way, and sought to forget all about their differences. This was a characteristic of each quarrel, Showing that the husband at the time had no feeling that the wife was actuated by any malicious purpose towards him. Indeed, there is no evidence of malice, except casual statements, which were made one or twice, that she wished he was dead, or that she would kill him. These statements she denies, but, if I accept them as true, they are too disconnected and infrequent to give sufficient evidence of a serious purpose. The manners and personal appearance of the defendant, and her statements while under oath, and all the indications of the whole case, relieve me from considering the case as imputing to her a maliciousness of purpose which is continuous or serious in character. I think all these ebullitions of feeling are traceable to a violent and untrained temper, exhibited on occasions which she felt justified her, and which were each individual, arising from the immediate provocation of the moment, and ceasing when the occasion had gone by. I think the husband was of that mind. He undoubtedly was of that mind as to all of these events until the incident of the 23d of August, 1895. What happened after that is in dispute; I mean immediately after that event; that is in dispute. I am not going into the details of these quarrels. They are a sort or kind that a court may possibly have to take cognizance of. I do not think they are of a kind that requires consideration just now. I think they are wholly unjustifiable, and largely due to the violence of the wife. After this occasion, August 23, 1895, there seems to be some doubt as to whether their intercourse was resumed. She says it was, and he denies it. She now says that it was continued for a year or more, until the filing of this bill. He says it was not. But there is no denial that on the particular occasion itself, when this difficulty originated, the husband came to his own room, in response to her demands, and spent the night there, with her; and I cannot believe that the circumstances were such that the man wasmade to come out of his room because he was afraid of the use of a cleaver, as was intimated in the evidence. The cleaver, as I recall the testimony, was certainly not exhibited or used as a means of compulsion. If it be true that the husband knew when he was in the other room, and had the door locked, that she had the cleaver in the entry, and was afraid, it is very much more likely that he would have stayed in that room than that he would have come out. The sense of the evidence which I received as to the cleaver was that it was discovered in the entry the next morning, and that it was not effectual in any way in inducing the exit of Mr. Hewitt from this room to which he had retired. In response to her demand, which she had a right to make (not by threats, indeed, but by ever so vigorous a demand), that he come, after their quarrel, and occupy his own room, and that he should not put upon her the shame of separating himself from her in the presence of his family, he did that like a sensible man, when he was invited to come out of the room, not induced by the threats, but because he felt that he ought to do what he could to make up the difficulty in his family; and he admits that he came and occupied the same room with his wife. This is the only quarrel proven which endured over the going down of the sun. The next morning the remains of it broke out again at breakfast, and Mrs. Hewitt threw a cup of coffee at Mr. Hewitt. There is some doubt as to where it landed, but there seems to be no doubt as to the spirit which actuated the attack. She was sore because of the feeling that her husband was whispering about her with his daughter, and on this occasion threw the cup in response to his challenge. She says in her testimony that, up to the filing of this bill, he continued to occupy the same room with her, and also continued the connubial relations. He denies it. It is not necessary to consider the testimony on this question, because, where it is asserted on one side by the wife, and denied on the other side by the husband, it is almost impossible to say whether the connubial relations were continued; but there is no denial that during the whole of the period, not only up to the filing of the bill, but to the present time, Mr. Hewitt has continued to live in the same house with his wife, and to accept from her all her duties, excepting only the occupation of the same room. The services of a wife in the management of his household, and waiting upon him, she even yet performs; and there is nothing in the case anywhere to indicate any apprehension or terror on his part arising from any threats which she has made; nor is there shown any sense or feeling that he is in the slightest danger; nor was there any evidence given in terms or words of any suffering on the part of the husband, existing or apprehended, because of the wife's conduct. On the other hand, one witness testifies that she was there two weeks last summer before she got any idea of any family differences what ever. The wife testifies that she has no ill feeling towards her husband. A permanent boarder swears there is less disturbance during the past year.
The events which last preceded the filing of the bill were the quarrel near the refrigerator and the coffee-throwing incident. These happened August 23, 1895. The bill was not filed until September 23, 1896. Counsel has made a statement here, which I am willing to accept so far as it is necessary, of the fact that the engagements of counsel prevented for some time the filing of this bill; but, if the condition of that family was as wretched and miserable as counsel so eloquently depicted, it is impossible for me to believe that the husband would have endured it for a period of a year and month next succeeding the happening of the provoking cause, which was characterized as inflicting such a terrible sense of deprivation of peace and quiet upon this family. Since that time there has been no collision. Violent language has been used, but violent or profane language is not of itself sufficient to justify the holding that it is extreme cruelty. It it were accompanied by other incidents which would go to show that it had an effect upon the person to whom it was used, and had resulted in causing a condition of despair and depression, as in the case of a sick or weak woman, who is bedridden, and not able to get away, it would be forceful. But there is no evidence which indicates that this gentleman has been reduced to a condition of either terror or fear. On the contrary, all the evidence goes to show that the exercise of that mutual concession which each undertook to extend when entering into the marriage state would probably result in the whole of these quarrels being forgotten, as they ought to be. In my view, nothing has been shown to me which will justify a divorce on the ground of extreme cruelty, and I think, therefore, the bill must be dismissed. I will make the order that the dismissal of this bill shall be without prejudice. I cannot but feel that I should give something in the nature of a warning that such conduct of the wife as has been shown here is of the kind to invite this sort of attack, and I will leave this case in such a shape that, if circumstances shall justify it, the facts here presented may be part of the basis of further proceedings, although I cannot retain the bill.