Henderson v. Henderson

Citations

• 88 Ill. 248

Syllabus

<p>1. Divorce—cruelty required—sufficiency of proof. The wife, on the trial of a suit by her for- a divorce on the ground of extreme and repeated cruelty, testified that some ten years before, the defendant kicked her while in bed, because she put her cold feet to his, not hurting her much, but hurting her feelings, and that he punched her with his elbow because she wanted him to lay over in the bed, while he denied ever striking her or kicking her in anger. She did not claim he ever injured her, or threatened her with violence. It appeared there were occasional altercations, in which angry and abusive language was used by each toward the other, each claiming that it was provoked by the other: Held, that the evidence did not show that extreme and repeated cruelty required by the statute, as a ground of divorce.</p> <p>2. Same—what meant by extreme and repeated cruelty. The extreme and repeated cruelty required for a divorce must be physical harm, in contradistinction to mere harsh or even opprobrious language, or even mental suffering. The cruelty must be grave, and endanger life or limb, or at least subject the person to danger of great bodily harm.</p> <p>3. Same—not proper to leave it to jury to find whether a party is entitled to a divorce. On the trial of a suit for divorce, it is error to leave it to the jury to find, by a preponderance of the evidence, whether the complainant is entitled to a separation from the defendant.</p> <p>4. Instruction—must not leave jury to decide law. The court should instruct the jury as to the law of the case, and never leave it, by instruction, to bo found by them. It is error to leave the jury to find whether a party is entitled to a divorce.</p>