John Burns, Appellant, vs. Jane Burns, Appellee, 13 Fla. 369

EANDALL, O. J.,- delivered the opinion of the Court. The petition of appeal states several grounds upon which the defendant seeks to avoid the decree, and we proceed to examine them seriatim. 1. “ That complainant’s allegation of his past residence is not in compliance with law.” The statement in the bill is, that “ the complainant is, and has been for more than two years a resident of this State,” that the parties were married at Jacksonville in this State, according to law, in April, 1862, “ where the parties have ever since limed?

The statute says that “ no divorce shall be granted to any applicant unless it shall appear that such applicant has resided in the State of Florida for the space of two years prior to the time of such application.” Laws 1852, chap. 522. It is not apparent that the complainant could by the use of any other form of words, have stated more positively than she has done, that she has resided in this State for the space of two years prior to time of filing her bill.

It is further urged, “ That the date of the marriage is not alleged with sufficient certainty.” It would be trifling to expend any time or words upon this proposition. 2. “ That the allegations in the bill of the statutory grounds of divorce, without alleging specific facts to constitute said grounds, are insufficient to sustain a decree and 3, “ That one of the grounds upon which said decree is based, to-wit: the habitual indulgence of a violent and ungovernable temper, is defectively alleged, in this, that it is not alleged that the violent and ungovernable temper was indulged in toward the complainant.” It might be deemed a waste of words to specify under the charge of “ habitual intemperance” any series of facts in order to make this charge more definite.

The charge of l£ habitual intemperance,” in the language of the statute, evidently can only refer to a persistent habit of becoming intoxicated from the use of strong drinks, thus rendering his presence in the marital relation disgusting and intolerable. It would not be more definite and certain if it were charged that the defendant drank intoxicating liquors “ on the first day, and on the second day, and on the third day,” and so on upon each day of each month, or on alternate days from month to month, the general charge of necessity implying the specific facts.

After alleging that “ the defendant habitually indulges in violent and ungovernable temper, and is extremely cruel to his wife, this complainant,” she defines these charges by further stating, “ that he has used threatening, blasphemous and abusive language toward your oratrix on many occasions, and threatened her with fatal violence, and attempted to carry his threat into execution, so that your oratrix has had to seek safety in flight;” and further, in her amended hill, that the “ defendant has put and continues to keep your oratrix in fear of bodily harm from his violence and abuse.” Thus the complainant has given a statement of conduct on the part of the defendant toward her which apprises him of the nature of the charge, and of the facts whieh she intends to show by proof to sustain it.

It is a series of acts and continued conduct on his part toward her. If she were to allege definite days or weeks, on and during which such acts were committed, she would not in her proofs be confined to the precise time alleged, and under the specifications given, the defendant would be sufficiently apprised to enable him to prepare his defence. In a case in Alabama, it was alleged by the wife “ that her husband soon after their marriage commenced treating her, and did treat her with cruelty and inhumanity.

That on various occasions he has inflicted blows upon her in anger and with much violence, thereby endangering her health and life.

That he has refused to supply her with the necessaries and comforts of life, when it was in his power to have supplied her with them ; that he still persists in this course of treatment towards her, and that she cannot with any degree of comfort or safety continue to live with him.” On demurrer, the court say : “ The case made by the bill is a case of marital tyranny ; of deliberate, unmanly and continuous cruelty.” * * “We think the acts of cruelty are sufficiently alleged, and that there was no necessity for greater particularity in alleging the time, when, and the place where the cruelty occurred.” * * “ Any conduct on the part of the husband which furnishes reasonable apprehension that the continuance of the cohabitation would be attended with bodily harm to the wife, is legal cruelty to her.” Smedley vs.

Smedley, 30 Ala., 714. We have found no statute of any other State giving a right to sue for a divorce for the cause and in the precise language of our own, viz : for the “ habitual indulgence of violent and ungovernable temper,” and therefore we find no adjudication upon the question whether under such a charge it is necessary to allege any facts generally, or specifically, beyond those implied or included in the charge itself.

In the nature of this charge against a defendant a sa ground of divorce, it is certainly practicable to set forth facts relating to the conduct of a party, which will show whether he indulged in a violent and ungovernable temper, and a defendant may be interested in knowing, for the purpose of preparing his defence, what are the facts or the particular nature of the facts which the complaining party intends to prove.

It is unnecessary to set out all the acts and circumstances in detail, but it is necessary to give enough of them to indicate the character of 'the case sought to be made, in order that the court may judge whether, the facts being proved, they will support the general charge.

Applying this rule to the present case, has the complainant alleged generally or specifically such facts regarding the defendant’s conduct toward her as to warrant the conclusion that he was guilty of the habitual indulgence of violent and ungovernable temper % It is true that the statement of facts is extremely meagre, but it is still a statement of facts, and exhibits the character of the proof intended to be adduced in support of the charge.

If the use on many occasions of threatening, blasphemous and abusive language, threatening complainant with fataL violence, and attempting to carry such threats into execution and compelling her to seek safety in flight, and the subsequent statements in the amended bill, (filed some months after the filing of the original bill.) are that the defendant continued to keep the complainant in bodily fear on account of his violence and abuse, be not a statement of facts, (however meagre,) we are unable to distinguish between facts and conclusions.

The defendant neither demurs, nor makes any attempt to obtain a more full and specific statement of distinct facts, nor to arrest the progress of the suit, but takes issue upon the facts as stated, and the cause proceeded, at the expense of much time and money, to the taking of a mass of testimony upon each issue and a final hearing and decree. If the brief statement of the facts regarding the defendant’s conduct do not amount to a charge of extreme cruelty, it is conceived that they at the least show that the habitual temper of the defendant was violent and ungovernable.

That it was violent, is too apparent for question. If it was not “ ungovernable,” it was at least willful, malicious, and cruel. It is a charitable construction to infer that the conduct alleged was the ebullition of an ungovernable temper, and if the charges are true, they u furnish reasonable apprehension that the continuance of the cohabitation of the parties would be attended with bodily harm to the wife,” and that the marital relation ought to cease.

The 4th ground of error is, “ that there is not sufiicient evidence of marriage to sustain the decree.” The bill alleges a marriage; the answer admits in various forms of language that the parties were married. The complainant in her testimony states that she was married to the' defendant, and mentionéd the time, and that she has resided in this State between sixteen and seventeen years. The defendant swears that the complainant owned property in Jacksonville “ at the time of my marriage with complainant,” and repeatedly alluded to her as his wife, and to the time they were married.

Oue witness (Mitchell) states that he was a frequent visitor at complainant’s house before her marriage, and “ was at her house the night they were married.” Nearly all the witnesses prove cohabitation, and that they lived together in this State during the entire period from the marriage to the time of separation, and spoke of each other as “ husband” and “ wife.” Under the rules referred to in Bishop on Marriage and Divorce, and the decisions of the courts of various States, this proof of the marriage^ for the purposes of a civil suit, is ample, for we have not only the testimony of both parties to the fact that they were married, but also the testimony of several witnesses that the parties invariably spoke of each other as husband and wife, and that they cohabited as such. “ When parties are living together as husband and wife, the legal presumption, favoring innocence, is, that they are persons married to one another, and not persons living in the violation of morality, and decency, and law.

But when the issue to bo decided in the case is such as to show that the one against whom it is decided had violated morality, and decency, and law, if the other party were married to a third person, then no presumption of such marriage can arise simply from cohabitation as husband and wife.” “ In prosecutions for criminal conversation, and upon an indictment for adultery, there must be direct evidence of the marriage, in distinction from presumptive evidence.” 2 Bishop on Mar. and Div., 272, 275.

The 5th, 6th and 7th grounds urged are, that the testimony does not sustain the allegation of habitual indulgence of a violent and ungovernable temper toward the complainant, or of the habitual intemperance of the defendant. It is sufficient for the purposes of this appeal to remark that we have examined carefully all the testimony in the case, and the conclusion is, that the proofs fully sustain these charges. There is some conflict in the testimony, but not of such a character as to lead to any other conclusion.

The testimony of the defendant generally contradicts everything sworn to by the complainant upon these points, and our judgment is founded upon the testimony of the other witnesses. Upon this testimony, we think any fair jury would find that the charges in the bill are true as found by the Circuit Judge. The decree is affirmed with costs.