Kurtz v. Kurtz. 3. It was error to decree alimony for the life of the wife. Ib. 592-6-7; Sockridge v. Sockridge, 3 Dana, 28; Gantt's Dig. sec, 2205. 4. The maltreatment charged was only words and overwork; no indignities to the "person" shown. Lewis v. Lewis, Mo., 278; Gantt's Dig. sec. 2155, clause 5; Hooper v. Hooper, 19 Mo., 355; Rowes v. Rowes, Ib. 321; Rose v. Rose, 4 Eng. 507, 516; Sheel v. Sheel, 2 Sneed, 716. The indignities must be habitual. Ratcliffe & Fletcher, for appellee. 1. No proof of adultery except testimony of appellant, which is not corroborated. 31 Ark., 684; 33 Ark., 259; Ib. 207; 34 Ib., 37. 2. The grounds set up in cross bill sufficient, and fully proven. 1 Bish. Mar. & Div. (4 Ed.) sec. 726 and notes 2 and 3 et seq.; Ib. sec. 826; Coble v. Coble, 2 Jones, Eq., (N. C.) 392; Gale v. Gale, 2 Robertson, 421; Nogus v. Nogus, 7 Tex., 538; Honnett v. Honnett, 33 Ark., 156, 161; Rose v. Rose, 9 Ark., 507. 3. Alimony properly decreed. 2 Bish. Mar. & Div. (4 Ed.) sec. 481; Musselman v. Musselman. 44, Ind., 106; and not excessive. 2 Bish. Mar. & Div., (4 Ed.) secs. 462-3-4 to 484 and 512; Turner v. Turner, 44 Ala., 437. It was properly for life of wife. Wait v. Wait, 4 Const., 95; Whitsill v. Mills, 6 Ind., 229; 23 Ind., 71; Lewis v. Sleator, 2 Green (Iowa), 604; McCrany v. McCrany, 5 Clarke (Iowa), 232; Burdick v. Briggs, 11 Wis., 126; 2 Bish. on Mar. & Div, (4 Ed.) sec. 706; 2 Scribner on Dower, 507-522; Stewart v. Stewart, 43 Ga., 294; Rose v. Rose, Sup. 4. The alimony properly decreed a lien upon land of Kurtz, Hill v. Mitchell, 5 Ark., 608; 7 Ohio Rep. (1 pt.) Kurtz v. Kurtz. 161; Olin v. Hungerford, 10 Ohio, 269–70; Fishli v. Fishli, 2 Litt., (Ky.) 337; Sheafe v. Sheafe, 3 N. H., 155; Blankenship v. Blankenship, 19 Kan., 159; Holmes v. Holmes, 29 N. J., Eq., 9. 5. The allowance to attorneys reasonable. Hecht v. Hecht, 28 Ark., 94–5. EAKIN, J. The appellant, John Kurtz, sued his wife, Annie, for a divorce on the ground of adultery. She denied the charge in her answer, and on her part, filed a crossbill for a divorce, on the ground of cruel and inhuman treatment on his part in requiring of her overwork ; and also charging circumstances of gross and repeated insult, and studied coldness and contempt; amounting as she contends to such indignities to her person as to render her condition intolerable. Upon the hearing the Chancellor dismissed his bill, and granted the divorce upon her prayer, with an order for a semi-annual sum to be paid her as alimony, with her counsel fees incurred in the suit. Kurtz appealed with a supersedeas. Upon the application of appellee, she has been allowed, by this court, a small amount for the payment of her attorneys here, and also a small monthly sum for maintenance, during the pendency of the appeal, to be credited in case of affirmance upon the alimony decreed below. There has been a subsequent application to this court, on the part of appellant, to modify its allowance of alimony pending the suit, which motion has been reserved until the determination of the cause upon its merits. It is now submitted upon the whole case. No question of law is involved in this decision. It would serve no useful purpose to detail the evidence, or set forth its substance. It has been carefully considered by the court, and we concur with the Chancellor in thinking that Kurtz v. Kurtz. The testi the charges of the complaint are not sustained. mony of the complainant himself; as to the adultery, is direct and positive, but we think is wholly without corroboration. If it were struck from the record and all else admitted there would be nothing which, upon a fair construction, would impeach or tarnish the general character, which, it is otherwise proved, the lady sustains as a virtuous woman. For her the cause of divorce is not so clear as want of it on the side of her husband. There was no such cruelty as amounted to saevitia on his part-nothing directly endangering her person with bodily hurt. Her health was bad, and she undertook, and was, perhaps, driven by her husband's want of care and consideration, to undertake and perform more household and farm work than she ought to have endured. But on this point there was no such compulsion as, standing alone, could, with safety to society, be declared ground of divorce. But the evidence does reveal a course of conduct on his part which we cannot doubt would render the life of any female, with average sensibilities, too intolerable for endurance. He was afflicted with a jealousy of his wife, which is proven, in part, to have been groundless; and which, in the absence of any proof to sustain his own testimony, we must suppose to have been wholly a delusion. Under its influence he became cross, morose, and insulting. His manner towards her was repeatedly and persistently unkind. He withdrew from her all confidence, watched her movements secretly, and openly charged her, in coarse and disgusting language, with the grossest immoralities with divers persons. at different times, He did this not only in private, as a husband, believing it to be a fact, might and should do, to give opportunity for explanation, but did it in presence of others, and made it a matter of discussion with common laborers on the farm. He persisted in declaring to her physician, Kurtz v. Kurtz. against his positive assurances, that his wife had a loathsome disease, contracted from illicit intercourse. He persecuted her with charges of adultery when she would be suffering and unable to reply; until at last, goaded to desperation, as it seems, she left his bed and refused to live longer with him as his wife. Parties witnesses, The competent render but no de cree on their testi alone. It is to be remarked that a great deal of this depends, and 1 DIVORCE must of necessity depend, upon her own testimony. rules of evidence, as to parties, in divorce cases, them competent to testify; but this court has heretofore my announced that a divorce should never be granted upon the unsupported testimony of the parties alone. We think this rule has been well applied to the complaint of the husband. With regard to hers, it may be said, upon the other hand, that it is corroborated in many points, so far as facts of so private a nature between man and wife can be. We feel satisfied that so far as these insults and these indignites are concerned, her testimony is true. : Personal ties; what Do they come within the statute which authorizes a divorce 2. where either party "shall offer such indignities to the per- indigni son of the other as shall render his or her condition intoler- are. able?" The question in each case is always a difficult and dangerous one, where there is no proof of actual bodily harm. It will not do to say that the quarrels and contentions of married life amongst people who lack refinement, even when accompanied by the grossest insults, may be always accepted as ground of divorce. The great and predominant obligation of mutual forbearance and mutual forgiveness would soon sink from sight, and society would be delivered over to all the evils which civilized governments have anticipated in the loosenesss of the marriage tie. Those who assume those ties should do so gravely, and take each other not only "for better" but "for worse" also, if life be endurable in any tolerable shape. They should be driven Kurtz v. Kurtz. by necessity to conciliate each other rather than to aggravate dissensions with a hope of separation. Still there are limits of endurance which this court has recognized in the construction of this clause, and which fall short of saevitia in its ecclesiastical sense, The meaning of the "indignities to the person," too, has been extended beyond insulting gesture or touch. A leading case on this question is that of Rose v. Rose, 9 Ark., 507. In that case it was considered that the personal indignities contemplated by the statute included "rudeness, vulgarity, unmerited reproach, haughtiness, contempt, contumely, studied neglect, intentional incivility, injury, manifest disdain, abusive language, malignant ridicule, and every other plain manifestation of settled hate, alienation, and estrangement." The court, however, seemed to admit these with great circumspection and some reluctance, holding that to constitute grounds for divorce as creating the intolerable condition the statute had in view, they must be habitual, permanent, and continuous. It must be confessed that this position goes to the very verge of safety, and should be pressed no further In applying it the Chancellors should act with great caution to avoid the gradual approach, by imperceptible steps, to the practice of holding all matrimonial bickerings by which parties may render each other unhappy, to be valid grounds of divorce. Where there are no fixed and well defined barriers of principle it is difficult to limit the encroachment of precedents, setting in one direction. Each so nearly supports the next that before one is aware the bounds of reason are passed. These expressions in Rose v. Rose have been adopted and followed in the case of Honnett v. Honnett, 33 Ark., 156, under circumstances appealing strongly for its application, and it must now be considered the settled construction of the statute. Whether it has been wisely done must depend on the care and circumspection of the Chancellors. |