The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1901-12-19
CRUELTY


I'm the divorce case of Corruno Bart
lett against Ward r. Bartlett, appealed
from Judgment iu the first circuit
court refusing a. divorce, the supreme
Court rendered "a lengthy decision yes
terday sustaining the lower court In
the opinion of the court the question
of what constitutes cruelty is discussed
at much length. The plaintiff With
drew in the higher court her charge
of habitual intemperanCe, ana appealed
on three grounds first as to a ruling
by Judge Humphreys that the defend
ant, in accusing the plaintiff of "un-
faithfulness' had not been guilty of the
cruelty of false and malicious charge
Of adultery secondly ruling that the
mental suffering shown did not consti-
tute grounds for divorce for cruelty
and third that an accusation of adul-
terry i'm order to constitute cruelty,
must be made i'm the presence of third
parties. In discussing the language
used by the defendant and the grounds
on which the bill was dismissed, the
court, in an opinion written by Chief
Justice Frear says:
we do not construe the opinion as
holding that language could not be re-
garded as amounting to charge of
adultery unless IL necessarily implied
that, when taken by itself alone. The
statement of the court that the au-
I
of this kind the charge of adultery
| must be in words which convey neces-
sarily the idea of unchastily.' taken by
/ itself, seems to go too far. If that were
an instruction to jury, it might be at
| least a serious question whether it
would not be sufficient to call for a new
| trial But the court alone acted in this
case and the whole opinion should be
considered together.
| Taking the opinion as a whole, the
court seems to have dismissed the bill
on the general ground that all things
considered the evidence did not show
| a case of extreme cruelty and more
| particularly that it did not satisfactory
| ly appear that by the charge of "un-
| faithfulness' was intended a false and
malicious charge of adultery. The de-
cisiOn was evidently based on the want
| of sufficient evidence not on view of
| the law which counsel contends is errO-
neous. 1t may be that the
word unfaithful is generally used, un-
| der circumstances like the present, in
the sense contended for, but we could
not hold as a matter of law in the evil
Idence that it was so used in the present
case. The word is capable Of more
! than one meaning and the sense in
which it was in fact used in this in
stance was for the trial court to deter
mine from the evidence.
|
duct on the part of the libellee which
tends to support the ground of extreme
| cruelty, but it is not relied on in this
court as sufficient to warrant us in
reversing the judgment below, regard
ing that as having the weight of jury
verdict"
The syllabus says as to other points:
Extreme cruelty for purposes of di-
vorce does not require personal vio-
lence. 1t may exist if there is bodily
injury, whether actual or apprehended
whether direct or Indirect, through
mental suffering. Quere, whether men
tai suffering alone is sufficient.
False and malicious charges of adul-
terry may amount to extreme cruelty
but they do not necessarily under al
circumstances. In determining wheth-
er they amount to cruelty or not it is
!, proper to consider whether they were
made in the presence of third persons
or not, and whether they resulted in
bodily harm or an apprehension OF
bodily harm or not"
Kinnel Ballou & McClanahan APP
peared for the plaintiffs and Magoor
and Dillon for defendants.