Scottish Court of Session Decisions

In 1896 Mrs Elizabeth Margaret Smeaton or Smeaton, wife of Thomas Wright Burgh Smeaton, of Easter Coul, Auchterarder, Perthshire, brought an action of separation and aliment against her husband. In this action decree of absolvitor was pronounced on 22nd October 1896 in pursuance of the following joint-minute:—“Graham Stewart for the pursuer and Grainger Stewart for the defender concurred in stating that the parties had resumed cohabitation, and that they withdrew all imputations made on either side on record. Counsel therefore craved the Court to discharge the diet of proof, to assoilzie the defender from the conclusions of the summons, and to find no expenses due to or by either party.”

In January 1899 Mrs Smeaton brought another action of separation also on the ground of cruelty. In her condescendence she averred a general course of violent conduct on the part of Mr Smeaton from the date of their marriage in 1882, and particular acts of cruelty in 1895, 1896, and 1898. The averments of cruelty in 1895 were the same as those contained in the previous action.

Mr Smeaton lodged defences, in which he denied having been guilty of cruelty.

A proof was taken, the import of which sufficiently appears from the opinion of the Lord Ordinary ( Stormonth Darling) and Lord Adam.

On 19th January 1899 the Lord Ordinary assoilzied the defender from the conclusions of the summons.

Opinion.—“This is a painful and in some respects a narrow case, but I am of opinion that the pursuer has failed to prove cruelty of such a kind as to justify judicial separation.

It is always necessary in these cases to consider the station and mode of life of the

Page: 596↓

parties in order to apply the appropriate standard of conduct. Now, the station in life of these parties is very respectable. They are persons living on a small property belonging to themselves. But I am sorry to say that the conduct of the husband did little credit to his station in life. He was very much addicted to drink, in the sense of having occasional bouts of drinking with long intervals of sobriety, during which he seems to have discharged public functions with credit to himself and with acceptance to his neighbours. But when he did exceed, as he too frequently did, undoubtedly his language, and to some extent his conduct, were of an exceedingly reprehensible kind, and much more like that of an uneducated man than that of a man of his position in society.

Now, I am most unwilling to say anything unpleasant of the lady, because I think that she had reason to complain of many things in her husband's conduct; at the same time it would not be possible, I think, to take a just view of this case without having regard to the fact that she was a person of excitable and sometimes of violent temper, and that she showed her temper in occasional acts of personal violence both towards her husband and his relations of a kind very unusual in her position in life. I gladly pass from that disagreeable aspect of the case with the observation which I think it right to make, that a woman of that kind can hardly expect to be judged by the same standard that would be applied to one of more gentle nature, and that certainly she cannot be supposed to have been so readily alarmed by violent conduct on the part of others as most other women of her class would be.

Now, the outstanding fact of the case is that these people married in 1882, separated in 1895, and came together again in the autumn of 1896, and that during the period of separation an action was raised by the pursuer against her husband founding on the earlier acts which are set out in this record. But the result of that action was that the wife allowed decree of absolvitor to pass in favour of her husband. Now, I do not dispute for a moment that in spite of absolvitor having been granted, the wife was entitled, on a recurrence of the same kind of violence, to revert to the alleged acts from which the husband had been assoilzied, not for the purpose of founding on these as a substantive ground of separation, but for the purpose of giving colour to the later acts. At the same time the circumstance of the wife having agreed to absolvitor makes it difficult to believe that she regarded these acts at the time as of so serious a nature as to put her in fear of her health or her life, and the difficulty becomes, I think, an impossibility when regard is had to the letters which she wrote to her husband in the early part of 1896 urging him to return to her and the children. The question therefore really comes to be, whether the acts subsequent to that decree of absolvitor, which are only two in number, when read in the light of the prior incidents, acquire a significance and a seriousness which they would otherwise not have had. Accordingly, I think the proper way to take the case is, first, to consider these acts of July and September 1898.

The act of July 1898 was not one of violence, but of drunken ill-nature and bad language. I do not say a word to defend or to palliate it, but I think that by itself, when attention is paid to the evidence of Mr Carruthers, the only independent witness of the scene, it is impossible to say that it affords any ground for judicial separation.

The incident of September 1898 is undoubtedly of a more serious character. I think the result of the evidence is that the husband came home the worse of drink; that during the night there was an altercation between him and his wife; and that in the morning the quarrel was renewed. It seems to have related principally to her going to church—whether she was to walk or to drive. The result was that she took up writing materials, and he was curious to know what she was going to do with them. Apparently there were high words between them, and she refused to give him an answer, and he thereupon took advantage of her going out at the back-door to lock it behind her, and he afterwards locked the front door to prevent her getting in there. Now, if I thought that he thereby intended to drive her out of his house and prevent her returning, I should be prepared to hold that that was an act of cruelty justifying judicial separation. But I cannot so regard it when read in the light of his former conduct, bad in some respects as I think that conduct was. Throughout his whole conduct to his wife I think there is this uniform note, that he never had any personal ill-will to her; that he never intended to injure her; that throughout his bad language and his occasional roughness of treatment there was a sub-stratum of self-respect and of affection for her; and I think these were sufficient to prevent him ever having had for a moment the design of striking her, in the sense of doing her any bodily harm. That I apply to the whole course of his conduct, and therefore when I find he locked her out on that day in September, I think it was the result of temper, and although it would have been much more becoming that he should have expressed his regret to her at the time than that the apology should be left to be made by his counsel now, still I cannot believe that he wished, or that she believed that he wished, to drive her from his home.

Now, if these incidents of 1898 are not of themselves sufficient to oblige me to separate this couple, I ask whether they receive from the earlier incidents a gloss or colour which would oblige me to take so serious a step? I think not. Again, I find in these earlier acts much to condemn in the husband's conduct, but I am bound to add that I also find in the wife's evidence with respect to them gross exaggeration, so that she is not supported by the evidence of independent witnesses whenever it is possible to test her in that way. I may mention as a sample of that, the kind of allegations

Page: 597↓

made in Cond. 6 and Cond. 7, where, if the facts had come out as there averred, undoubtedly there would have been disclosed a very serious case of cruelty. But the facts have come out in a sense which falls far short of the averments, and therefore I cannot accept the evidence of the pursuer when it stands alone as conclusive on the question of the husband's conduct.

Now, the most serious of these earlier incidents was undoubtedly that of 16th December 1895, when the defender burst into his mother-in-law's room and removed the child from it, and then had a scuffle with his wife—because it certainly amounted to that—with reference to the possession of the child. If I believed that on that occasion he had either kicked or struck her with the intention of doing her any bodily harm, I should have thought that cruelty in the legal sense was proved, but it turns out that the alleged kick was merely a raising of his bare foot when she was trying to get possession of the child, and that it was only a passing incident in what I have ventured to describe as a scuffle. The subsequent incident of 19th December is garnished on record with stories about loaded guns and that kind of thing, but when you come to examine it, although a constable was summoned, there really was no ground for alarm as to the defender's conduct towards the pursuer. He did not do or threaten to do any harm to her, and I believe that the brandishing of the gun, which was certainly not loaded, and was a perfectly useless old weapon, was entirely due to the fact of his annoyance at the policeman having been sent for.

Accordingly, on the whole matter I have come to the conclusion that these earlier incidents do not oblige me to take of the incidents of 1898 a view more serious than that which they themselves suggest. I think the short and the long of the story is that most unfortunately for himself as well as for the peace of his family the defender has not had the manliness to give up those drinking habits which have been his bane. But the mere fact that a wife has a husband who persists in dissipation is no reason for judicial separation, unless when under the influence of drink he so far forgets himself as to put her in reasonable fear for her life or health. It is because I do not believe that this lady has ever had reasonable fear either of the one or the other that I think it would be unwarrantable to pronounce decree of judicial separation. Accordingly, I shall grant absolvitor, but I shall find the pursuer entitled to expenses.”

Mrs Smeaton reclaimed, and argued—The Court must look at the recent acts of cruelty in the light of those which occurred before and had been condoned, to see whether in the whole history of their married life the pursuer could safely live with her husband— Macfarlane v. Macfarlane, Feb. 7, 1849, 11 D. 533; Graham v. Graham, July 19, 1878, 5 R. 1093; Collins v. Collins, Feb. 18, 1884, 11 R. (H.L.) 19, per Lord Blackburn at p. 25. So regarded, the evidence showed cruelty which entitled the pursuer to separation— Mackenzie v. Mackenzie, Dec. 21, 1892, 20 R. 636, affirmed May 16, 1895, 22 R. (H. L.) 32.

Argued for the defender— The recent acts of cruelty must, in order to open up previous history, be of a serious character, and must be such as to put the wife in serious apprehension of the recurrence of past violence. Nothing of that kind was proved here.

At advising—