
    John CHAISSON v. Leonsie OGERON, wife of John CHAISSON.
    No. 1011.
    Court of Appeal of Louisiana. Fourth Circuit.
    May 6, 1963.
    
      Johannesen, Roberts & Bruno, Ingard O. Johannesen and Henry J. Roberts, Jr., New Orleans, for defendant-appellant.
    Ogden, Woods, Henifiques & Rives, Charlton B. Ogden, II, New Orleans, for plaintiff-appellee.
    Before YARRUT, SAMUEL and HALL, JJ.
   SAMUEL, Judge.

This suit, filed by the husband, seeks a separation from bed and board on the ground of cruel treatment. The defendant wife answered, denied the charges and reconvened for a separation on the grounds of cruel treatment and abandonment. Defendant has appealed from a judgment of separation from bed and board in favor of plaintiff, which judgment dismissed her re-conventional demand.

A considerable part of the testimony is conflicting. However, some of the facts are either uncontradicted or established beyond reasonable question, and these facts are:

At the time this suit was filed the litigants had been married, apparently happily, for more than 23 years and had two children a boy 20 years of age in the army, and a girl 18 years of age in school. While the son was in service in Oklahoma he was befriended by a Mr. and Mrs. Edward Hughes who lived in that state. They visited the son and entertained him at their home on several occasions. The defendant’s sister, Mabel, was the wife of Lonnie Hughes, a brother of Edward Hughes. Mr. and Mrs. Edward Hughes later moved to Jefferson Parish and they and the litigants saw each other frequently.

On one such occasion the litigants, their daughter and one of her friends, and Mr. and Mrs. Edward Hughes attended a dance at a cafe in Raceland, Louisiana, where plaintiff’s brother, Paul, worked as a bartender. At that time the incident which gave rise to some of the trouble between plaintiff and defendant took place. Plaintiff and Mrs. Hughes kissed while dancing with each other on a dance floor occupied by other couples and while only several feet away from the balance of their party including the defendant and the daughter. Defendant did not see the incident; the daughter and others did.

Approximately two months later defendant began accusing plaintiff of flirting with Mrs. Hughes and of infidelity. In the presence of plaintiff the daughter told the defendant about the kissing incident between him and Mrs. Hughes. Plaintiff denied the incident; the daughter, in effect, called him a liar; and he slapped or struck her. Thereafter defendant insisted that her husband would have to stop seeing Mrs. Hughes. He refused to do so and continued to visit with the Hughes family as he and his wife had done in the past.

From then on matters went from bad to worse. The defendant refused to have marital relations with, her husband and he was forced to leave their bed room and sleep elsewhere in the house. She continued to accuse him of infidelities and refused to prepare his meals or launder his clothes. When defendant filed non-support charges against plaintiff in the juvenile court (she received an alimony award in the amount of $35.00 per week), plaintiff left the matrimonial domicile. The departure from the matrimonial domicile took place several months after plaintiff’s wife began accusing him of infidelities.

Plaintiff testified that his wife’s accusations arose as a result of what she had been told by her sister and brother-in-law, Mabel and Lonnie Hughes, who had quar-relled, and were no longer friendly, with Mr. and Mrs. Edward Hughes; and that he would not allow his wife’s sister and her husband to run him or his family. He asked his wife to accompany him on visits to and with the Edward Hughes’ as they had in the past but she refused. At least a part of this testimony is correct even according to the defendant. Although she testified her husband continually was going out with Mrs. Hughes, she admitted that she had never seen the two alone together but that her sister and brother-in-law, Mabel and Lonnie Hughes, had seen them and had told her about those incidents. The sister and brother-in-law did not testify at the trial.

Defendant testified that her husband, who during their previous married life regularly had turned his full pay check over to her, refused to support her and their daughter. She also denied that she refused to cook or launder clothes for her husband but the record preponderates to the contrary. The question of support prior to the filing of non-support charges was the subject of conflicting testimony. Plaintiff said he stopped turning over his full pay check to his wife only after it became necessary to use some of the money for his food and laundry, but that he always furnished her money for herself and their daughter. Defendant’s pleadings allege plaintiff refused to furnish her any money for a period of three weeks. We conclude that some support was furnished and that defendant’s accusations to the contrary were exaggerated.

The daughter testified her father had told her that he was having an affair with Mrs. Hughes. Obviously the trial court did not believe her testimony, and neither do we.

The record is devoid of any proof, other than the kissing incident which we have mentioned, of any indiscrete or improper actions between plaintiff and Mrs. Hughes. We consider the kissing incident as being relatively unimportant and magnified out of all proportion by the defendant. It is quite clear that there was no attempt to conceal the incident, not even from the defendant herself. And in view of the exaggerated importance attached to it by his wife, we can understand plaintiff’s denial of its occurrence. It is true that plaintiff continued to visit with the Hughes family after his wife began her accusations. He admitted such visits while denying that anything improper had occurred. But Mr. and Mrs. Hughes lived with their three children and Mrs. Hughes’ mother. And the only evidence relative to Mrs. Hughes and the plaintiff being together alone related to two isolated occasions, both of which occurred during the day time when those two parties were seen driving in an automobile. One of these occasions took place when plaintiff drove Mrs. Hughes to a store and then to her husband’s work where the latter joined them. The other incident was testified to by a neighbor, Mrs. Matherne, who was able to say she had seen the two people together on only one occasion and was unable to set the time of that occurrence. The plaintiff testified that on the occasion Mrs. Matherne referred to he was driving Mrs. Hughes back home from his lawyer’s office and this testimony appears to be correct. At the time of the trial Mr. and Mrs. Hughes were living in Houston. Nevertheless they returned to testify and their testimony is completely in favor of the plaintiff.

We have considered the possibility of mutual fault operating as a bar to relief being given to either litigant, particularly in view of a remark made by the district judge at the conclusion of the trial when he stated that he found fault on both sides, referring to the fact that there was “plain hardheadedness on each side”. The rule in Louisiana is that only mutual and equal or nearly balanced fault, of a similar nature, operates as a bar to relief being given to either litigant. Gilbert v. Hutchinson, La.App., 135 So.2d 283; Eals v. Swan, 221 La. 329, 59 So.2d 409; Hammonds v. Caballero, 207 La. 1090, 22 So.2d 660; Temperance v. Herrmann, 191 La. 696, 186 So. 73; Gormley v. Gormley, 161 La. 121, 108 So. 307; see also Magliolo v. Magliolo, La.App., 135 So.2d 616.

As the trial judge was familiar with this rule, he must have found, as do we, that the fault on the part of the wife outweighed that on the part of the husband.

The primary question presented by this appeal is one of fact and we cannot say that the finding of facts by the trial court was so erroneous and unsupported by the evidence as to warrant a reversal. To the contrary, we agree with that finding. Defendant’s refusal to have marital relations with her husband, her continued accusations, without proven reasonable provocation, of infidelities on his part, and her refusal to prepare his meals or launder his clothes constitute sufficient grounds for a judgment of separation from bed and board in his favor and sufficient cause for leaving the matrimonial domicile as he eventually did. Seeling v. Seeling, La.App., 133 So.2d 161; Callahan v. Callais, 224 La. 901, 71 So.2d 320; Bonvillion v. Papa, 218 La. 203, 48 So.2d 897.

For the reasons assigned, the judgment appealed from is affirmed.

Affirmed.

YARRUT, J., dissents with written reasons.

YARRUT, Justice

(dissenting).

I am compelled to dissent from the majority opinion, because the evidence convinces me that the wife was entitled to a judgment on her reconventional demand or, at worst, both suits should have been dismissed on the ground of mutual fault, as was the conclusion of the District Judge, notwithstanding which he rendered judgment for the Plaintiff-husband instead of dismissing both suits.

The parties were married in 1937 and, at the time of suit, had a son 20 years of age (in the Army), and a daughter 18 years of age (in high school).

The husband alleged he was a kind and dutiful husband and gave his wife no cause for complaint, yet she was guilty of the following acts of cruelty:

1. Accused him of improperly kissing the wife of an “in-law” while they were dancing at a cocktail lounge;

2. Refused to have marital relations with him;

3. Refused to launder his clothes and prepare his meals, thereby compelling him to do so.

The wife first denied his allegations of cruelty, then alleged these acts of cruelty on his part in her reconventional demand:

1. Confessed to their daughter that he was having an affair with the wife of the “in-law,” and, if she told her mother, he would beat her; that their daughter told her of this confession, whereupon he brutally beat their daughter in her presence, requiring medical treatment for their daughter;

2. After she confronted him with his flirtation with the other woman, he refused to support her and their daughter, denying them food and money; and continued his daily visits with the other woman; and, on occasions, remained away from home overnight with no explanation; all of which made living with him unbearable, for which reasons she, and not he, is entitled to judgment of separation.

In January 1960, Plaintiff and Defendant (referred to herein collectively as the Chaissons), with their daughter and a girl friend, attended a night club with the “other woman” and her husband, as they had frequently done for over a decade. The daughter and Plaintiff’s brother (a bartender employed at the lounge) testified that, while Plaintiff and the “other woman” were dancing, they were observed kissing. When the daughter confronted the “other woman” in private with what she had seen, the latter denied it, and immediately offered to talk to Defendant about the incident. The daughter demurred as she did not want to upset her mother. The “other woman” then told her husband, who also wanted to speak to Defendant but, when told of the daughter’s attitude, decided to “let it ride.” Defendant was told of the incident for the first time in August 1960 by their daughter in Plaintiff’s presence, following which he struck his daughter as related above. Constant quarrels between the Chaissons followed the incident.

Defendant repeatedly urged Plaintiff to stay away from the other couple, which he refused to do, saying there was nothing between him and the “other woman.” Defendant admitted accusing Plaintiff of infidelity, which he persistently denied; and testified he began remaining away from home for hours at a time; refused to give her money or food, and threatened to starve her and their daughter. Plaintiff left home after Defendant charged him with non-support and obtained an alimony decree of $35.00 monthly in the Juvenile Court.

Plaintiff testified his wife refused to cook or launder for him; kept accusing him of affairs with the “other woman;” that he was still friendly with the "other woman” and her husband, and saw nothing wrong in visiting them, but insisted he was never alone with her; that his unfriendly sister-in-law kept prodding his wife about the “other woman,” and tried to “run” his life; and finally, when living at home became intolerable, he left and went to a boarding house near his place of employment.

The husband of the “other woman” testified to the fidelity of his wife, who admitted Plaintiff had taken her shopping, but had never been alone with her.

What strikes me as very significant is that Plaintiff persistently denied he kissed the “other woman” when dancing, yet when his daughter and wife insisted he had, he replied to the effect that, “since you insist I did, then I did.” If his kissing was harmless and had no suspicious implications, why did he insistently deny it? His own brother testified he saw him do it.

Plaintiff and his daughter shared the finest filial relationship prior to the incidents resulting in her parents’ estrangement, and she could have had no reason to testify against her father except the sad duty of telling the truth under oath when called as a witness.

The Trial Judge’s reaction to the testimony was:

“ * * * it appears to me that there is considerable fault in the reactions of both of these people, and instead of each attempting to compromise and adjust themselves to a situation in which they find themselves, that each party to the marriage took it upon themselves to say that they would hew to a particular line and would not give in, come what may. And of course, ‘What may come’ was OBVIOUS, and DID come; and it seems to me that such a long life together should be destroyed, — destroyed by plain hardheadedness on each side.”

The testimony of the 18-year old daughter as to the conduct of her father tilted the scale in. favor of her mother. To disregard her testimony the Court would have to conclude that she was guilty of dishonoring her father and bearing false witness against him. The majority opinion seems to conclude that the wife’s sole complaint is predicated on the one occasion when her husband kissed the “other woman.” Admittedly, this one incident would not be a justifiable ground for suspicion or a charge of cruelty, but considering the husband’s persistent attention to the “other woman,” accompanying her on occasions when shopping, unnecessarily remaining away from home for hours at a time, and sometimes nearly all night, without explanation, and his refusal to provide his family with food, clothes or funds to maintain the household, cannot be ignored. This situation has been aptly epitomized by our Supreme Court in the case of Silva v. Miramon, 156 La. 360, 100 So. 528, in which the Court said:

“And on the whole we therefore conclude, as did the district judge, that plaintiff’s demand should be rejected. Where a husband so behaves as to give his wife just ground for believing that he has abandoned her for another woman (as this plaintiff certainly has), he cannot complain that she should voice her indignation at his conduct and give vent to some feeling against him on that account; and her conduct on such occasion, being thus provoked by himself, cannot be assigned by him as ‘excesses, cruel treatment, or outrages * * * of such a nature as to render their living together insupportable,’ and thus furnish grounds for a separation from bed and board under R.C.C. art. 138. Let such a husband first mend his own ways, and when this is done, it will then be time to complain of his wife’s ‘ill treatment’ should she on her part not cease complaining; which of course, she will under such circumstances.”

While it is well-settled that findings of fact of the District Court, unless manifestly erroneous, should not be disturbed on appeal, this rule does not apply to a misapplication of the law applicable to such facts. Since the finding by the District Court is clearly that of mutual fault and comparative rectitude, the worst the wife should suffer is a dismissal of her suit along with that of her husband. Eals v. Swan, 221 La. 329, 59 So.2d 409, and cases therein cited; Miguez v. Miguez, La.App., 128 So.2d 799.

It is .my opinion that the judgment of the District Court should be reversed and judgment rendered in favor of the wife, with the dismissal of the husband’s suit; or, in the alternative, both suits should be dismissed, as in the case of mutual fault and comparative rectitude.  