Haskell v. Haskell

Department No. 2, Sharpstein, J.; The plaintiff, for a first cause of action, alleges that the defendant, for more than ten years next preceding the commencement of this action, was guilty of extreme cruelty toward her; and then proceeds to detail at great length a series of acts, which, if proved, would support a finding of adultery. Immediately following this narrative, in the same count, is an allegation “ in further support of said charge of extreme cruelty,” as the pleader styles it, “ that for more than ten years past, and until now, defendant has been addicted to the use of intoxicating drinks,” which caused him to be “ querulous and disagreeable— often using toward plaintiff offensive language in the presence of the children ; that his breath became nauseous and offensive ; so that for these reasons, and by reason of his intimacy ” with the woman who is alleged to have been his paramour, the plaintiff with the defendant’s consent ceased to lodge with him in 1871. It is further alleged in this connection, that during said ten years the defendant often appeared before the plaintiff and her children “in a state of intoxication, and many times •when he was very drunk, so much so as to hardly know what he was about;” and that this occasioned the plaintiff great mental suffering.” These alone are the facts alleged in support of the charge of extreme cruelty.

That adultery or habitual intemperance would in a popular sense constitute extreme cruelty, we do not question. And so would willful desertion or willful neglect. But, in a legal sense, extreme cruelty is something different from any of the other causes of divorce, and constitutes a separate and distinct cause of action. Otherwise, it would be unnecessary to specify any other cause than extreme cruelty as a ground of divorce in any case. This count seems to be framed on the theory that allegations of adulterous conduct which falls short of actual adul[264]tery, coupled with allegations of excessive drinking which does not amount to habitual intemperance, constitute a good cause of action for extreme cruelty. That theory is not supported by any authority, and we are not inclined to lend it our countenance.

On the trial, the plaintiff, by leave of the Court, withdrew the charges of intimacy or association of the defendant with the woman named in the first count of the complaint; and it was suggested on the argument by respondent’s counsel in this Court, that the remaining allegations of that count constitute a cause of action for divorce on the ground of habitual intemperance. But the complaint was not drawn with that view. The allegations of the same count, as to intemperance, are avowedly and expressly introduced “in further support of said charge of extreme cruelty,” which is alleged to have occasioned the plaintiff “ great mental suffering,” and not such as “ would reasonably inflict a course of great mental anguish ” upon her, which is a further indication that the pleader had “ extreme cruelty ” and not “ habitual intemperance ” in view. The allegations of this count are denied in the answer, and the Court did not find that the defendant had been guilty of extreme cruelty.