
    Heim v. Heim.
    
      (Decided February 3, 1930.)
    
      Messrs. Calkins, Storey é Nye, for plaintiff in error.
    
      Mr. BeWitt Fisher, for defendant in error.
   Richards, J.

Dean D. Heim commenced an action in the court of common pleas to secure a divorce from his wife, Elizabeth A. Heim, on the ground of extreme cruelty. The petition avers that on September 10, 1924, Elizabeth A. Heim w'as adjudged insane and incarcerated in the Toledo State Hospital where she thereafter resided. Pursuant to the statute, a trustee was appointed to make her defense.

The court of common pleas granted a divorce to the husband and awarded to him, as alimjony, her undivided one-half interest in certain real estate, barred her from dower in the husband’s real estate, and ordered him to pay her $2,250.

It is now contended in her behalf that the judgment is manifestly against the weight of the evidence, and that the trial court misconstrued the statute in granting a divorce to the husband.

The parties were married on April 24, 1904, and lived happily and harmoniously together until the end of 1922. About that date Mrs. Heim began to show signs of mental derangement, the first manifestation of this being that she thought she had a cancer and that her husband was abusing her. She had shortly theretofore nursed him through a long period of illness, and her nervous system had been very much, impaired thereby. She called her husband vile and indecent names and threatened him with a knife. She was sent to the Dearborn Sanitarium in July, 1923, on the application of her husband, and on September 10, 1924, was adjudged insane by the probate court and committed to the Toledo State Hospital for the insane, where she has since been confined.

The case seems to have been tried on the theory that she was responsible for her acts until the time she was committed to the asylum, and not that she was relieved from responsibility from the time she became insane. This court can not assent to that view. The extreme cruelty, which is a ground for divorce, means voluntary or intentional extreme cruelty, and cannot be committed by a lunatic who does not understand the nature of her acts. Divorce may, it is true, be granted as against an insane person, but only for acts committed while sane. Insanity is not a ground for divorce. The ten causes for which divorce may be granted under the Ohio statute are as explicit as the Ten Commandments, and can be changed by the Legislature only.

The great weight of 'the evidence shows that the acts committed by her, of which complaint is made, were committed while she was insane and did not understand what she was doing, and they do not, therefore, constitute a cause for which divorce may be granted.

The judgment is manifestly against the weight of the evidence.

Judgment reversed.

Williams and Lloyd, JJ., concur  