191 La. 696

#### TEMPERANCE v. HERRMANN.

No. 34577.

Supreme Court of Louisiana.

May 2, 1938.

On Rehearing Nov. 28, 1938.

Second Rehearing Denied Jan. 10, 1939.

Edward M. Heath and S. Roccaforte, both of New Orleans, for appellant.

M. C. Scharff, of New Orleans, for ap-pellee.

PONDER, Justice.

This is an appeal by the defendant, husband, from a judgment in favor of the plaintiff, wife, for separation from bed and board.

The plaintiff sought separation from bed and board on the grounds of slander and defamation and of cruel treatment. It is alleged in her petition to the effect that her husband made slanderous and defamatory statements about her in the presence of their child and in the presence of other persons; that he accused her of being no good and of selling or renting her body to others; that he embarrassed, criticised and humiliated her in the presence of her friends; that he would do anything that he thought would embarrass or annoy her; and that they had not lived together as man and wife for the last three years.

The defendant denied that he had slandered and defamed his wife and denied the cruel treatment. .However, the defendant admitted that he and his wife had lived separate and apart for the last two and a half years but averred that he had just cause for so doing. The defendant averred that his wife had an ungovernable temper and had scratched, bitten and kicked him. There was no reconventional demand for separation from bed and board or for divorce.

Without going into a detailed narration of the testimony the record shows that there was testimony adduced on the trial in behalf of the plaintiff that on several occasions the defendant abused the plaintiff in the presence of their friends and that the defendant accused her of acts which amounted to slander and defamation.

After careful review of all the testimony in this case we are of the opinion that the judgment of the lower court is correct. If we had any doubt as to the correctness of the testimony offered in behalf of the plaintiff it would be entirely dispelled by the attitude of the husband on the trial of this case. The husband attempted to prove that the plaintiff was a party to or a go-between in illicit adulterous relations between a married woman and a married man. The only evidence as to this relation is that based entirely upon suspicion and the record is absolutely void of any testimony of facts to support the defendant’s contention. The defendant had employed three detectives prior to the institution of this suit to spy upon his wife because of the defendant’s suspicion of wrong doing on the part of his wife. The testimony of the detectives shows no fact to prove any wrong doing on the part of the wife. We do not find any testimony that supports the suspicion of the defendant of other wrongful acts on the part of the wife. It could only be reasonable to believe the testimony of the wife to the effect that the husband had made slanderous statements about her and accused her of wrong doing *74in the presence of other persons prior to the institution of this suit in view of the fact that the defendant on the trial of this case without just grounds is now accusing the plaintiff of wrongful acts and acts of a slanderous nature. It is only reasonable to believe that the wife told the truth and that the other evidence offered on her behalf was true. If the defendant now accuses her of wrong doing without reasonable grounds it would be reasonable to believe that the husband had made prior slanderous statements. The evidence shows that the cruel and unwarranted treatment by the husband has‘been such that they have been living separate for the last two and a half years and there is nothing to-show that there is any probability of their ever becoming reconciled.

The defendant’s counsel urges that disappointment in the marriage relation and mere incompatibility is not a sufficient ground for separation from bed and board, citing Gormley v. Gormley, 161 La. 121, 108 So. 307, and other cases to that effect. We have no fault to find with these decisions but they are not applicable to this case. All of those cases hold to the effect that where the faults of the husband and wife are nearly balanced and of a similiar nature that neither party can be heard to complain in a court of justice. From the evidence in this case the faults are not equal and are not of a similiar nature. The very attitude of the defendant on the trial of the case in attempting to attack the good name of his wife on mere suspicion and the fact that the evidence introduced by him to that effect failed to disclose any fact from which he might reasonably base such a suspicion shows that he is unreasonably suspicious and jealous and tends to corroborate the plaintiff’s testimony of cruel and unreasonable treatment and his unreasonable tendency to accuse her of wrong doing.

For the reasons assigned, the judgment is affirmed at appellant’s cost.

O'NIELL, C. J., does not take part.

On Rehearing.

HIGGINS, Justice.

This is a suit by a wife against her husband for separation from bed and board on the grounds of alleged cruel treatment. Defendant admitted that they quarreled but denied.he was guilty of cruelty, and pleaded in bar that his wife was equally responsible for their difficulties.

There was judgment in favor of the plaintiff granting the separation and awarding her the custody of their minor daughter and alimony. The defendant appealed.

We affirmed the judgment, but on the defendant’s application, granted a rehearing.

While the pleadings set up specific offenses, in the trial of the case the issues were broadened by the introduction o.f evidence, which was not objected to, that covered the entire span of their eleven years of married life, which began on June 17, 1926. About one year after their marriage, while on a weekend party at Bogalusa with two other couples, as the guests of mutual friends, someone suggested that the- group, consisting of four couples, attend a public dance. After they were there awhile, certain strange men began “breaking the couples” and one of them danced with the plaintiff. The defendant objected to his wife dancing with a strange man, and particularly one who had been drinking and who held his wife in a way that was objectionable to him. The wife did not share his view and pointed out that others were doing the same thing. Thereupon, he insisted that she leave the dance and the other couples left with them. The evidence is in conflict as to whether it was originally intended that plaintiff and her husband spend the night in the home -of their host and hostess or at a hotel, the wife stating that they were to remain at the home and the husband testifying that they were not, because the home did not have accommodations for all the couples, and they, being the only *guests*married, defendant insisted that they sleep at the hotel. The plaintiff claims that she was humiliated and embarrassed by the ugly conduct of her husband, under the circumstances.

On a subsequent occasion, the date of which is not made clear, plaintiff and two of her witnesses testified that they went to get ice cream and she ordered a particular kind, but when her husband brought her the ice cream, it was not the flavor she *requested;*that when she told him she had ordered a different kind of ice cream, he “flew into a rage” and threw the ice cream cone away and said, “why in the hell don’t you make up your mind what you want”, much to her chagrin and humiliation.

Another incident complained of, concerning which the date is not definite, is that *75while they were attending a cocktail party and dinner at the home of mutual friends, during the course of conversation, someone remarked that some men would eat bacon and eggs 36S days out of every year without complaining, but that “John (the defendant) would raise the devil about such a thing”. It appears that on that morning the plaintiff and the defendant had an argument about bacon and eggs for breakfast and defendant, being under the impression that his wife had told some of her lady friends of the occurrence, “flew into a rage” and said that'if his wife “kept her damn mouth shut about their domestic affairs, they would get along better”. Plaintiff claims that this deeply wounded her feelings and embarrassed her in the presence of her friends.

It is also charged that during one summer, plaintiff, defendant and another married couple, who had one child, rented a house at Hammond for a month; that the husbands came to New Orleans each day to work and returned to Hammond at night; that the other couple invited a gentleman friend to spend the month with them and he accepted; that one evening while the plaintiff was playing bridge, her husband asked her to trim his finger nails and she requested him to wait until she finished the game, but he refused to do so and “flew into a rage” and bawled her out in the presence of her friends, and that night refused to permit her to sleep in the bed with him and ordered her to use a cot in the living room; that the other two men told him that he should occupy the cot and his wife the bed, if he did not want her to sleep with him.

.Plaintiff and two of her witnesses also testified that one evening after a dinner party’at Maylie’s Restaurant, in the City of New Orleans, the parties went to the home of a friend in Metairie Ridge, where cocktails were served; that the defendant, in attempting to pass his wife with a glass of wine in his hand, spilled some of it on her dress, and when she told him to look where he was going, he told her to “go to hell”, which caused her to repair upstairs and cry; that after the party, the plaintiff and defendant, together with one of his employers and a co-worker and their wives, drove home in his employer’s automobile and everything was peaceful until the co-worker and his wife got out of the car at their residence; that thereafter the defendant renewed the quarrel, calling his wife vile names and acting in such a violent manner that it was necessary for the employer to admonish him that unless he desisted, he would put him out of the car; and that upon arriving at the defendant’s home, while on the sidewalk, he again, in a loud voice, resumed the argument and after entering his house he continued fussing, frightening his wife and little girl to such an extent that it was only after his employer threatened to take them home with him, or remain there for their protection, that he behaved and quieted himself.

The defendant denies that he was guilty of abusing or ill-treating his wife, and his co-worker, who was in the automobile and at the parties in Maylie’s Restaurant and Metairie Ridge, testified that the defendant was sober and had demeanored himself as a gentleman and had in no way been offensive while in his company.

Another complaint against the defendant is that one evening he and the plaintiff went to the Suburban Gardens with a man and his wife, who were good friends of theirs, and that while dancing with his wife, the defendant started to stomp (dance) ; that upon his wife protesting that the noise was making them conspicuous, “he flew into a rage” and stopped dancing, grabbed her by the arm and violently pushed her across the floor to the table where they had been seated, and began fussing at her in the presence of their friends, causing her considerable embarrassment.

Plaintiff testified that, in the presence of their little daughter, her husband called her vile names and accused her of misconduct, and generally abused her and said he did not love her and would have nothing to do with her. Her statements in this respect are uncorroborated. The defendant denied that he made these statements or demeanor-ed himself in that manner.

Plaintiff states that on several occasions, because of the violent temper of her husband, and fearing bodily harm, she was compelled to leave her home in the early hours of the morning with her child and go to the home of friends, and that when she returned without the child, he refused to let her have her clothes until she brought the baby home. Her statements as to what 'transpired in the house are uncorroborated, but her friends did testify that she telephoned and asked them to come ánd get her, as she was afraid of her husband.-

Several of the plaintiff’s witnesses testified that the defendant assumed an ugly *76and sarcastic attitude toward his wife generally while they were in company with others. A number of equally reputable men and women, friends, neighbors and relatives, testified that on the occasions when they were with the plaintiff and defendant, he behaved himself properly.

The colored maid, plaintiff’s witness, who worked in their home for a number of years, testified that when the husband came home and found things were “not right”, he remonstrated with his wife and she usually replied in kind and an argument ensued. She states that the quarrels were over the usual trivial matters that arise between married people — she termed it “friendly fussing”.

An attorney, defendant’s witness, who had been married twenty-six years and who lived next door to these parties, stated that his room was within twenty feet of their home, and that while there was frequent bickering between them, it yvas amusing to him, because of-the inconsequential nature of the disputes and the fact that the wife was better on repartee than her husband. He stated that both parents were devoted to their minor crippled daughter, who had suffered an impairment of the function of the use of her left leg due to infantile paralysis when she was two years old, and that, from the manner in which these parties conducted themselves in the neighborhood and in his home, he regarded her as a good wife and him a good husband, and that he was surprised when he learned that she and her little girl had left home.

The major part of the testimony of these two witnesses is corroborated by the evidence generally, which shows that' during the last two and one-half years in which these parties lived together, the quarrels were less frequent and less serious than those that proceeded them.

It is extraordinary, to say the least, that if the quarrels and arguments in the privacy of their home were not violent that defendant would wait until he was in a public place or had an audience of friend's and acquaintances to stage a scene by flying into a rage.

The plaintiff admitted that her husband worked regularly in a clerical position for the same concern for about fifteen years and that in his spare time he studied to become a Certified Public Accountant; that they were buying their own home; that he provided the family with an automobile; that she had an adequate wardrobe, consisting of a number of dresses, hats, shoes and accessories; that during the entire time of the illness and unfortunate condition of their child, he provided the best of medical attention and used every means possible to restore the child’s health and her leg to a normal condition, but without satisfactory results; that they received many invitations to attend parties but her husband embarrassed her on a number of occasions by declining to accept them; although her testimony shows that they went out frequently; that while in their home she accused him of spending some of his money on another woman, she said “in my heart, I did not believe it”; that he forbid her to continue associating with a married woman they had known for many years, because he became suspicious that this woman’s conduct with a certain man, who was a friend of her husband, was not proper, and that she was using the plaintiff as a screen to shield her indiscretions; that she denied that this woman had been guilty of any wrongdoing and refused to give her up, causing repeated altercations between them; that on one occasion she concluded he was about to strike her and she scratched, bit and kicked him; that when the arguments became violent, she would telephone the wife of one of her husband’s employers, who would send her automobile and she would leave him and stay at their home until the next day; that her husband forbade her to see a certain male friend of her sister, who had been an intimate friend of the deceased brother-in-law, but that she disregarded his wishes and drove this gentleman in her husband’s car, accompanied by her eight year old daughter, to to the Chalmette Cemetery, where they placed flowers on the deceased brother-in-law’s grave, as instructed by her sister, who was then living in California; that they took kodak pictures of the grave and of themselves and returned to the city about 6 o’clock p. m.; that this gentleman gave her passes for herself and minor daughter to the picture show and met her on Canal street and accompanied her and her little girl to the picture show at her invitation; that a few days later, while her husband was at work, this party came to her home to bid her goodbye, because his position with the Naval Department required him to go to Boston, Mass., and, on that occasion, he remained in the house about twenty or’twenty-five minutes, her daughter and the negro maid being present; that she *77disregarded her husband’s instructions, because she could not see any harm in going out with this friend of the family; and that not having any more children had caused considerable disagreement between them.

The defendant testified that he had earned a salary of $345 per month, but due to the depression his salary had been reduced to $245; that he was seeking to improve his earning capacity by studying to be a Certified Public Accountant and spent a considerable number of hours studying with his brother, who was similarly interested; that the reason for declining many invitations to attend parties, outings and dinners was because he felt obligated to reciprocate and his income, when considered in connection with his obligations, did not justify him in spending a lot of money for pleasure; that his wife frequently played bridge and neglected some of her household duties; that she continually complained of his attempted restrictions on her social activities; that she discussed her domestic troubles with her friends and defendant’s employers, causing him considerable concern and worry about his position; that on one occasion she became so angry, she threw a plate at him, and another time severely scratched, bit and kicked him, without any provocation; that after having had ample opportunity to observe the conduct of one of her lady friends, he concluded, she was using his wife as a screen to shield an apparent love affair with another man, and that when he objected to his wife either visiting the woman’s home or having her visit their home, she declined to abide by his request, precipitating a great many quarrels between them; that it was only after he accidently discovered a letter addressed to the plaintiff by her sister, who lived in California, in which she advised her to be friendly with her former friend “George”, as he was “loyal”, and to go out with him, if she could get away from John (the husband), which letter plaintiff did not show to him, that he became suspicious; that, because of his wife’s refusal to comply with his request and not see this man, his confidence became shaken and he employed detectives to shadow her and inform him what was going on between them; and that the reason he did not reconvene for a separation was because he was not convinced that his wife had been guilty of any wrongdoing and was willing to make any sacrifice which might be conducive to the comfort, care and happiness of his crippled child.

It is unnecessary to narrate the evidence given by the three detectives, because the wife practically admitted their statements, except as to the length of time “George” remained in defendant’s home. This testimony substantially coincides with that given by the plaintiff’s witness, a colored maid, who was in the house at the time “George” visited there, she giving the additional information that he ate lunch there.

While the plaintiff’s lady friend and her husband denied that there were any improper relations between her and the gentleman friend of the family, and that the husband had confidence in his wife and his friend and was satisfied that they had not been guilty of any indiscretions and had no objections to their associations, nevertheless the defendant had the right to • advise his wife that he did not share in their broad-minded view and would prefer that she select as her companions women who were more conservative in their attentions to the opposite sex. The defendant was not concerned as to the attitude of other men in permitting their wives to have male friends, but it was his right to object to his wife associating with any one who would tend to impress upon her the idea that her husband was 'acting arbitrarily and unfairly in denying her similar privileges. Surely the husband had the right to insist that it would be a safer and wiser course not to permit unnecessary temptations to be placed in his wife’s path.

In the case of Gormley v. Gormley, 161 La. 121, 122, 108 So. 307, 308, this Court said:

> “Under our law, disappointment in the marriage relation and mere incompatibility of temper are not causes for a judicial separation between the spouses; excesses, outrages, and cruel treatment • are, but always with the qualification that the complainant must be comparatively free from wrong.

> “Where the faults of husband and wife are nearly balanced and are of a similar nature, neither party can be heard to complain in a court of justice. Durand v. Her Husband, 4 Mart. (O.S.) 174; Rowley v. Rowley, 19 La. [557] 571; Naulet v. Her Husband, Dubois, 6 La.Ann. 403; Trowbridge v. Carlin, 12 La.Ann. 882; Castanedo v. Fortier, His Wife, 34 La.Ann. 135; *78Amy v. Berard, 49 La.Ann. 897, 22 So. 48; Ducros v. Ducros, 156 La. [1033] 1034; 101 So. 407; Snell v. Aucoin, 158 La. 767, 104 So. 709. * * *

> “Counsel for the parties have argued that the matrimonial relation is so strained as to render their living together impossible, and, with much earnestness, have urged upon us the advisability of putting an end to the unfortunate situation by entering up a decree in favor of their respective clients. We are unable to do this. The question with this court is not whether it is best for the parties, or for society, that they should be judicially separated, but whether they have brought their case within those provisions of the law which regulate the most important relation of social life. Cooper v. Cooper, 10 La. 249.”

See also Scott v. Scott, 27 La.Ann. 594.

Much has been said about the defendant’s alleged defamatory testimony, particular reference being made to his reasons for instructing his wife to forego the friendship of the married woman, whose association he did not approve; his wife’s actions in not having any more children; and his employment of detectives to report to him their observations of the conduct of his wife with “George”. We find nothing in the defendant’s answers to the original and supplemental petitions of a libelous nature. The alleged slanderous statements of the husband were elicited by counsel for the plaintiff on cross-examination in endeavoring to determine the reasons for their difficulties. At the outset the defendant refused to divulge certain information, stating that he would rather lose the case than to harm innocent parties, and it was only upon the plaintiff’s insistence that the court ordered some of these questions answered, the names of the parties being kept out of the record.

In regard to the fact that the parties did not cohabit during the last two or three years they lived together, the wife admits that they occupied separate rooms by mutual consent and that she would have refused his .requests for indulgence, if any had been made. She attributed her lack of interest and indifference to the quarrels between them and her refusal to bear children because of the care required by her crippled daughter. It was shown that the child -and mother enjoyed good health. He justified his abstinence because his wife refused to bear him any more children. One of the primary considerations for entering into the sacred bonds of matrimony is to have children and neither spouse, under normal and ordinary conditions, has the right to decide that' there will be no offspring of their union. There are no exceptional circumstances in the instant case other than the child’s physical impairment, which was not a sufficient reason for her decision.

As far as the wife going out with a male-companion and entertaining him in her home, against her husband’s will, even though she would not be guilty of any wrongdoing and could- see no harm in it, such conduct evidences a lack of interest in her husband and her home and invites suspicion, promotes jealousy and destroys confidence. Such behavior on the part of a wife is a matter for gossip even in Hollywood.

While the evidence in this case tends to show that the husband was irritable and abusive on occasions, nevertheless, it appears that the wife was as inconsiderate of him and was equally responsible for their domestic difficulties. Certainly, it can not be said that the plaintiff was “comparatively free from wrong”. If she had heeded the advice and counsel of her husband instead of listening to friends, who were much less solicitous of her wellbeing than he was, this matter would not have found its way into the courts.

For the reasons assigned, it is ordered, adjudged and decreed that our original opinion and decree are recalled, the judgment of the lower court is annulled and set aside and the plaintiff’s demands rejected. Plaintiff’s right to a rehearing is reserved.

O’NIELL, C. J., is of the opinion that the decision rendered originally by this court, affirming the judgment appealed from, should be adhered to.

PONDER, J., dissents.