Opinion
No. 3776.
Decided January 5, 1949.
The two causes of divorce: extreme cruelty (R. L., c. 339, s. 6 III) and treatment injurious to health (Id. s. 6 V) are distinct and separate. The refusal of a divorce on the ground of treatment injurious to health, in which acts of extreme cruelty were alleged by way of specification was not res judicata of a libel subsequently filed on the ground of extreme cruelty where the evidence offered in support of the second libel was not considered by the Trial Court and may have included acts of extreme cruelty occurring after the filing of the first libel.
LIBEL FOR DIVORCE. Libelee's motion to dismiss the libel was granted. The following bill of exceptions submitted by the libelant (R. L., c. 370, s. 15) was transferred by Wheeler, J.
"Libel for divorce by Ada B. Geers against Lawrence M. Geers alleging extreme cruelty filed at April Term, 1948. The libel set forth the cause of divorce as follows:
"`2. That on or about the 4th day of November, 1943, the said Lawrence M. Geers was guilty of extreme cruelty to the said Ada B. Geers in that he struck her on the face, neck and about the shoulders causing her great bodily harm. That again on or about March 15, 1947, and on divers days and times since then the said Lawrence M. Geers has been guilty of other acts of extreme cruelty of the grossest nature, has threatened to strike her on many occasions, and by reason of his foul and indecent language, constant and unreasonable complaints, sex abuse of an unnatural nature, has put her in continuous fear of her physical health and safety.'
"Subsequent to the entry of the libel, the libelee filed the following motion to dismiss:
"`The libelee moves as follows: Whereas a libel for the same cause and/or causes, that is, extreme cruelty and conduct so as to injure health and endanger reason, was brought by the same libelant against the same libelee in the October Term, 1947, and after a hearing on the merits was marked `Libel dismissed' that therefore the present libel be dismissed.'
"The libel which the libelee claims is a bar to the present action was entered at the October Term, 1947, alleging the cause of divorce as conduct injuring health and endangering reason.
"The cause as there alleged was:
"`2. That since on or about January 15, 1945, the said Lawrence M. Geers has so treated the said Ada B. Geers as to seriously injure her health and endanger her reason, in that on divers days and times he has been guilty of acts of extreme cruelty, personal abuse and other injuries and improper conduct.'
"The Court, without hearing evidence offered by the libelant or considering the libel on the merits, granted the libelee's motion and dismissed the libel."
George P. Cofran and Thomas E. Flynn, Jr. (Mr. Cofran orally), for the libelant.
John W. Perkins and Everett P. Holland (Mr. Holland orally), for the libelee.
Among the thirteen causes for divorce in this state (R. L., c. 339, s. 6) are "III. Extreme cruelty" and treatment "V. . . . as seriously to injure health or endanger reason." The contention of the libelee that these two grounds are similar is well founded. Jones v. Jones, 62 N.H. 463. Thus certain treatment may be sufficient to establish both causes at the same time. Dubreuil v. Dubreuil, 93 N.H. 14. However, it has long been established that the causes are distinct and separate ones. There may be treatment injurious to health without cruelty (Robinson v. Robinson, 66 N.H. 600, 609) just as there may be cruelty without actual injury to health or reason (Sirois v. Sirois, 92 N.H. 27; Ballou v. Ballou, ante, 105).
The libelant does not contend that the pleadings in this case are model forms of unimpeachable clarity. The first libel, for instance, was lacking the necessary details as to "the specific acts and dates relied upon to constitute a cause . . . for divorce." Superior Court rule 125 (93 N.H. appendix). If objection had been made it would have to be amended in those respects or dismissed. K v. K, 43 N.H. 164. But it is reasonably clear that it set forth treatment injurious to health and reason. The reference to "acts of extreme cruelty" made therein after the phrase "in that" constituted merely a specification of the alleged cause for divorce. The second libel sets forth extreme cruelty as the cause for divorce.
The dismissal of the first libel alleging treatment injurious to health was not res judicata of the second libel alleging extreme cruelty. "Refusal of a divorce on one ground does not prevent a subsequent application on a different ground." I Nelson, Divorce and Annulment (2d ed) s. 2.11. See Rand v. Rand, 58 N.H. 536.
The evidence in support of the second libel was not considered by the Trial Court in any form as was done in Brown v. Brown, 37 N.H. 536, 537, and it is not before us. It might include evidence of acts of cruelty subsequent to the first libel, so that the former dismissal of that libel would not be determinative of the present one. Sandberg v. Sandberg, 81 N.H. 317, 318; Poulicakos v. Poulicakos, 94 N.H. 233, 235.
Exception sustained.
All concurred.