Wm. Gibson Jones v. Lula V. Jones, 60 Tex. 451

Willie, Chief Justice. The assignments of error in this cause are sixty-seven in number, of which fifty-five are relied on for a reversal of the judgment. We shall consider only such as we deem of any importance, passing by without notice all such as are either not supported by the record or present points unnecessary to be considered. We think the service upon defendant, and the return of the same, are sufficient under our Revised Statutes. These statutes are not to be construed strictly as in derogation of the common law, but liberally, and with a view to effect their objects and promote justice.

The object of arts. 1230 to 1233 of the Revised Statutes was to provide for an easier and less expensive method of effecting service on non-residents than by publication, and at the same time to make it certain that the defendant has full notice of the suit. To carry out these objects we must give the statute a liberal construction, disregard technicalities, and supply by intendment what the law, in other cases, would presume had been done. The defendant was a non-resident, and this authorized the service.

The application for the notice will be presumed when it has issued, and especially when it has been asked in the petition. It is also a fair presumption that the party making the service is competent and disinterested until the contrary is proved, and the signature and seal of the officer to the jurat, as made in the present case, is as full and complete a certificate as is required by the statute. As to the jurisdiction, it is doubtless a general rule that the wife’s domicile is the same with that of her husband.

When, however, the law authorizes a suit for a divorce by the wife, and makes the jurisdiction depend upon her residence, as does our statute (R. S., 2862; id., 1198), the provision would be idle if her domicile is of necessity to be the domicile of her husband. It would be, in effect, to allow the wife to sue her husband at the place of his residence — a privilege she has without any such provision. The plaintiff here alleges that she is a bona fide inhabitant of Camp county, where the suit was brought, and had been so continuously for six months before the commencement of this action.

The bona fides of her residence depended upon whether or not she had sufficient grounds for leaving her husband, and had taken up her residence in Camp county, not solely for the purpose of suing her husband for a divorce, but with the intention of making that county her permanent home. We think that all such facts are fully stated in the petition, and the court had jurisdiction of the cause.

The plaintiff being a bona fide resident of the county of Camp, the state of Texas had the right to pass upon questions affecting the continuance of the marital relation between the parties, no matter Avhere the offenses for which the divorce was sought had been committed. This is too well settled by authority to require argument in support of it. Cooley on Const. Lim., 400, 401; 2 Bishop on Mar. & Div., §§ 171, 172; Ditson v. Ditson, 4 R. L, 87; Cheever v. Wilson, 9 Wall., 123.

Decisions to the contrary may be found in some states, but as a general rule it is owing to the existence of some statute with provisions to the contrary. Any others are against the weight of authority, such as Edwards v. Green, 9 La. Ann., 317, cited by appellant’s counsel. We have no clause in our statutes varying the general principle established by the weight of authority, and in accordance with it we think our district courts can decree divorces for causes arising outside the limits of the state. Besides, one of the acts for which this divorce is sought, and

an act entirely sufficient to authorize it, was committed in the state of Texas after the plaintiff became a resident here. Special demurrers Bios. 6 and 20 were properly overruled. Without reference to any other acts of cruelty, the two charged to have occurred since the appellee has been residing in Texas are sufficiently alleged to require that those exceptions should be overruled. We believe, also, that there is nothing in the exceptions taken to the manner of alleging the acts of cruelty committed between November, 1877, and May, 1878.

The petition charged a continued course of wrongs, excesses and cruelties extending over a long period of time, viz., five months, which finally culminated in acts of outrage, which were specified with all possible particularity. It is not improper to include in a petition for divorce general charges of cruelty, and follow them by allegations of one or more specific acts which may or may not be included in the general charge. 2 Bish., §§ 651, 648a; Whispell v. Whispell, 4 Barb., 218. And in accordance with this rule are the forms in the English ecclesiastical court. 2 Bish., § 650.

This latter author says that good pleading requires that the libel, in addition to the special charges, should contain proper general ones under which to prove general conduct, temper, and the like. 2 Bish., § 652. And our own court in Wright v. Wright, 3 Tex., 182, seems to recognize the same rule as to general allegations; and in same case, at page 181, seems to consider averments of a course of misconduct from which outrages might be inferred to be sufficient for some purposes. But may it not be said that these acts are averred with sufficient certainty for divorce pleading? Mr.

Bishop says that such pleading is somewhat different from what is used in ordinary cases. It certainly is not required that the acts should be averred with the certainty of an indictment. The forms used in the English courts and in some of those in the United States do not allege the precise day and place of the occurrence of the acts. The place is scarcely ever alleged and the time no more certain than by reference to the month of the occurrence. 2 Bish., § 650a; Smedly v. Smedly, 30 Ala., 714; Beebe v. Beebe, 10 Iowa, 133; 19 id., 34; 13 id., 266. Our own court, in Wright v. Wright, 6 Tex., 3, considered

an act of cruelty sufficiently specific that gave the month when it happened without mentioning the place where it happened. The object of the pleading is to give the defendant notice of the charges he will be called upon to meet, and we think that object was accomplished in the present case. The time was between the last of November and the first of May, and the defendant could not mistake as to the place where events occurring during that time must have taken place.

We are of opinion that, taking into consideration the manner in which the acts committed between November 29, 1877, and May, 1878, are alleged, and the fact that the subsequent outrages are specified with great particularity, the demurrers to these allegations were properly overruled; that these allegations, taken in connection with the averment of domicile, gave the court jurisdiction, if proved, and rendered the acts of cruelty alleged to have been committed subsequently, good grounds of divorce. See Wood v. Wood, 5 Iredell, L. R., 674.

And holding as we do upon this subject, it necessarily follows that the court did not err in admitting relevant testimony under these allegations, and in submitting issues upon them to the jury. This -disposes of all assignments of error upon such rulings of the court below. The nineteenth assignment of error is not supported by the record, as acts of cruelty are alleged to have occurred after the reconciliation of February, 1877, and before the final separation in May, 1878, which were followed by greater outrages, committed subsequent to the last-mentioned date.

There was no error in overruling special demurrer 16. The exhibit made part of the petition shows that -the New York bill of divorce was sworn to before a notary public of that state, and the presumption is that he had authority to take the affidavit. The same presumption exists in favor of the jurisdiction of the court in which the bill was filed. If the officer had not authority to administer oaths, or the court jurisdiction, the defendant should have so alleged and supported his allegation by proof. Besides, we see no necessity for proving that the bill was sworn to.

Allegations of the character which it contains, made by a husband against his ■wife, are acts of cruelty whether sworn to or not. Nor was it improper to attach a copy of the bill to the petition. It constituted, in part, the cause of action, and was in aid and explanation of the allegations of the plaintiff, which had been fully made in the petition itself. Rule 19 for District Courts.

The affidavit attached to the petition was read to the jury not as evidence, but as pleading. 'No exception had been made to it, and pleadings, whether good or bad, on demurrer, may be read to the jury as such if they have not been stricken out on proper exceptions. As to all assignments which set up condonation it is sufficient to say that the reconciliation of November, 1877, did not bar suit based upon the precedent outrages, the ill-treatment having been renewed whilst the parties were subsequently living together, and again by acts of cruelty occurring since the plaintiff became a citizen of Texas. Wright v.

Wright, 6 Tex., 3; Nogees v. Nogees, 7 Tex., 538. The evidence of Flatau was to particular language used by appellant, which amounted, in substance, to what that language was charged to be in the petition, and this was sufficient and did not amount to a variance. The evidence of Byles was admissible as being in proof of specific acts, which, though not specifically alleged, could be received as explanatory of those averred and as giving weight to them. 2 Bish., § 658; David v. David, 27 Ala., 222, 224. There was sufficient to authorize the jury under special issue No. 3 to find for the plaintiff.

The facts set forth in appellant’s brief as showing improper conduct on the part of Mrs. Jones are of the most trivial character. The proof was abundant to show that she had suffered wrongs at his hands which in a great measure palliated, if they did not entirely excuse, any slight offenses she may have committed. The evidence is somewhat conflicting, but there is abundant proof in the record to show that the husband’s conduct was such as to drive his wife to commit every apparent offense he has proven against her, including even her final abandonment. See Sheffield v. Sheffield, 3 Tex., 79.

Admitting that there was proof to show that defendant contributed towards the support of his wife, and that the finding of the jury was against the evidence on the fourth issue, there was sufficient in the verdict upon the other issues, if supported by proof, to justify the divorce. If the jury had found for the defendant on this particular issue, and for the plaintiff upon the others, the court should, nevertheless, have entered a decree in accordance with the prayer of the petition.

What we have heretofore said on the subject of general and special allegations is sufficient to dispose of the forty-fourth assignment of error so far as special issue No. 6 is concerned. It was not necessary to prove every single charge alleged in the petition to have been made against plaintiff by her husband during their married life, and previous to their final separation. Proof that he had accused her of unchastity was sufficient for the purposes for which the allegation on that subject was made in the petition.

As to the fourth and fifth charges asked by appellant and refused by the court, they had been substantially given so far as they were good law in submitting special issue No. 3, which we have already considered. The principles contained in these charges, however praiseworthy in connubial ethics, cannot be laid down to their full extent as correct rules of law governing in cases like the present.

The law looks with much indulgence upon the conduct of a woman who is unjustly charged by her husband with the highest offense she can commit against his conjugal rights, and excuses any outbursts of resentment on her part under such accusations. Mayhugh v. Mayhugh, 7 B. Mon., 429. The very

section of the book quoted in support of these instructions says, in effect, that though the ill conduct of the wife has contributed in a measure to what she complains of in her husband, still, if the latter was very aggravated, it is good ground for granting her a divorce. § 768. The charges asked were inconsistent with this principle and were rightly refused. The forty-sixth and fiftieth assignments of error which are directed to the charge on the subject of the New York bill of divorce are not well taken.

If this bill was filed without any grounds for so doing, and under the circumstances proven on the trial, it was maliciously done. The defendant introduced no proof whatever to sustain the charges made in the bill, nor in palliation of his conduct in bringing the suit, and hence the inference that it was maliciously done was irresistible. It was not necessary to prove malice more express than was to be gathered from the antecedent conduct of the husband, and the feeling he displayed against her in his conversations with other persons.

The remaining assignments and propositions, which are of any importance, may be considered together, as they refer to the insufficieney of the evidence to support the verdict, or to justify the remaining charges given by the court. Enough of the facts alleged in the petition were substantially proved to authorize the verdict of the jury and the decree of divorce. The charges as to the idleness of the defendant and his failure to support his wife were not very satisfactorily proven, nor do we deem them important.

It was fully proven, however, that the appellant stated to his wife that he did not believe he was the father of her child born during the marriage. This was in effect to accuse her of adultery, and of being the mother of an illegitimate child. It was also proven that he filed against her in the courts of Hew York a bill praying for divorce, in which he alleged that she had committed two distinct acts of adultery at specified times, at a particular place, and with unknown men.

It was further shown that he stated to one of the residents of the place where she lived, after her removal to Texas, that she was guilty of. the most enormous offenses against decency, virtue and her marriage vows. The language used is too foul to repeat in a judicial opinion. It shocks the sensibilities of every decent person, and includes charges which no innocent woman could survive except in perpetual anguish.

Hot one spark of evidence is introduced by appellant to contradict these proofs against him, and he brings no testimony even of the slightest character to throw a suspicion upon the virtue of his wife, much less to establish these grave offenses laid by him to her charge. Such outrages are good grounds for divorce in our state. Our statute differs from those of a majority of the states in respect to the cruel treatment which will authorize a divorce.

It does not confine such treatment to bodily harm, or threats of the same, and properly includes within the meaning of “ excesses, cruel treatment and outrages,” insults or injuries to the mind or the heart. In some of the states it is not ordinarily deemed sufficient cause for divorce that the husband should have accused his wife of unchastity, but as

an act of gross cruelty almost enough of itself for that purpose. 1 Bishop on Mar. and Div., § 726. Our courts, under the peculiar wording of our statute, hold it not almost but altogether a sufficient act of cruelty to justify dissolving the bonds of matrimony. Pinkard v. Pinkard, 14 Tex., 356; Schreck v. Schreck, 32 Tex., 579; Sheffield v. Sheffield, 3 Tex., 79. And why should it not be so held ? What are wounds to the person as compared with those that affect the mind % The former may be healed; the latter endure for a life-time.

Of all the treasures cherished by a woman, her reputation for chastity is the dearest. “ It is the immediate jewel of her soul;” and, when an attempt is made by her husband, who should be her protector, to rob her of it, cruelty on his part has reached its utmost limit. He not only destroys her peace of mind, but exposes her to the contempt of the world and the insults and assaults of the worst of mankind. But it is urged that the mere charge of adultery contained in a bill of divorce, filed in another state, is not sufficient to authorize a divorce; and a dictum, of Judge Lipscomb is cited to sustain this point.

Simons v. Simons, 13 Tex., 475. Were this the only ground upon which the present divorce is sought, it might be necessary for us to consider whether or not this dictum is good law. But here the charge is not only made in the bill of divorce, but is followed up by public aspersions of the wife’s character, denouncing her not only as an adulteress, but as having reached, if possible, a still lower degree of female depravity. In such case it is strongly intimated in the opinion of the same learned judge that good ground for divorce would be presented. See, also, Wright v. Wright, 6 Tex., 3, and Sharman v.

Sharman, 18 Tex., 526. In the latter case, such conduct is characterized as “ an outrage to the feelings of the wife, and cruelty of the most base and aggravated character; inconsistent with the matrimonial relation, its obligations, its duties and affections.” We think the charges of adultery brought against the wife, when taken together and in connection with the remainder of the evidence, showing the complete and utter want of the least grounds for making them, were sufficient to require the decree of divorce rendered by the court. As to the question of recrimination, we think it scarcely deserves notice.

Recrimination is a valid defense when the recriminatory fact is of a like character with the act of the defendant for which the divorce is sought, or when the difference between the offense of the plaintiff and that of the defendant is merely slight in degree of guilt. But some allowance must be made for human frailty, and the plaintiff must not be required to be without fault, in order to obtain a divorce for the defendant’s great wrong. This is what was held by Judge Moore in Hale v. Hale, 47 Tex., 336, and is a correct exposition of the law on the subject.

Here the faults alleged against the plaintiff were “ trifles light as air ” compared to the unbounded wrongs heaped upon her by the defendant, and we do not think such recrimination was established as could avail him as a defense. From what has been said, it is clear that all points made upon the sufficiency of the proof to warrant the charges of the judge below, or to establish the jurisdiction, must be decided against the appellant. There is no error in the judgment, and it is affirmed. Affirmed. [Opinion delivered December 4, 1883.]