DISSENTING OPINION. I cannot agree with the majority opinion in this case. I am of the opinion the record discloses facts which show conclusively as a matter of law appellant *Page 9 was insane at the time she did the things of which appellee complains.
As stated in the majority opinion, appellee instituted this action on the ground of cruel and inhuman treatment. Appellee's complaint alleges the parties "lived and cohabited together as husband and wife until the 29th day of April, 1944, upon which date they separated and have since lived apart." There was one son who, at the time the complaint was filed, was about sixteen years of age. The acts of cruelty charged in the complaint are that appellant quarreled, nagged, cursed and humiliated appellee in public, and that she was extravagant.
In the case of Baker v. Baker (1882), 82 Ind. 146, appellant sought a divorce from her husband on the ground of nonsupport. The facts disclosed the husband had for several years been confined in the insane hospital and during such time had wholly failed to support appellant. The trial court denied the divorce. Our Supreme Court, in an opinion by Judge Byron K. Elliott, which has been frequently quoted with approval in many jurisdictions, after pointing out insanity was not a ground for divorce, stated: "There is no merit in the argument that the statute requires that a divorce be granted in all cases where the husband fails to provide for the wife. The statute was not meant to apply to cases where the inability to make provision arisesfrom mental or physical disease." (My emphasis.)
Unless authorized by statute, insanity or other mental incompetency arising after marriage is not cause for divorce. 27 C.J.S. 593, § 49. In 17 Am. Jur. 267, § 230, it is stated: ". . . an insane person should not be held responsible for acts of cruelty while insane, and if insanity itself after marriage is no cause for divorce, nothing which is a consequence of it can be." *Page 10
Neither the complaint nor the facts in this case bring it within § 3-1201, cl. 8, Burns' 1933 (Supp.), providing upon what conditions divorce may be granted for incurable insanity. Therefore, I believe this court, in determining this case, is bound by the long established ruling precedent of our Supreme Court in the case of Baker v. Baker, supra, which is supported by the weight of authority in other jurisdictions.
If the record did not conclusively indicate that the acts of the appellant (which are set out in the majority opinion) were the result of insanity, I would agree they were sufficient to sustain the decision of the trial court. However, I believe the facts as set out in the majority opinion are themselves sufficient to establish as a matter of law that because of her mental condition appellant was not responsible for her conduct. An examination of the record discloses other facts which confirm this opinion. The record discloses that on May 11, 1944, twelve days after this action was commenced, there was filed in the Vigo Superior Court an action to have appellant declared insane. Two physicians were appointed to examine her and report thereon to the court, which they did on the 17th of May. On the 19th of May, 1944, she was adjudged insane and ordered committed to the Logansport State Hospital. It is further disclosed that the conduct of which appellee complains commenced about six months before their child was born. Appellee testified that what he termed her tantrums or temper spells would last for varying periods of from three to six months. Then she would be normal and agreeable for a time. The record discloses there were frequent reconciliations between the parties.
The record to my mind clearly indicates appellee believed appellant's conduct was caused by mental illness because on two or three occasions prior to the time *Page 11 she was committed to the Logansport Hospital he sent her to institutions which provided care for persons suffering from mental illness. Appellant testified it has not been her intention to mistreat or be cruel to appellee. She said if she ever became abusive or used profane language it was at a time when she was mentally and physically ill. I think it significant that appellee did not deny the truth of this testimony. There is absolutely no evidence of misconduct of any kind by appellant since her discharge as cured from the Logansport Hospital.
The facts in this case are much stronger than in the well-reasoned case of Walker v. Walker (1925), 140 Miss. 340, 42 A.L.R. 1525, where the court, after reviewing cases from many jurisdictions, stated:
"In the case at bar, the husband seeking the divorce from his wife fixes the time within the period within which the offending wife was decreed to be insane, or so immediately before as to make it reasonably certain that the act was the result of insanity, and not an habitually cruel and inhuman act of a sane person, and likewise that it was not the wilful and obstinate act of a sane person.
"Conceding then that the facts set out constitute habitually cruel and inhuman treatment in view of the statements above, we must say that the court below erred in awarding a divorce in this cause."
Even if it could be inferred from the record (which I do not concede), that at the inception of appellant's alleged offenses she was mentally responsible, the evidence would not sustain the decision because there was condonation of such prior acts. While I recognize that if the promise, which is the consideration for condonation, is broken, the original offense is revived, this does not apply where the promissor is insane at the time the promise is broken. In this case I believe the evidence leads only to the conclusion the final separation was *Page 12 brought about by conduct of appellant when insane. Therefore, I believe the judgment of the trial court should be reversed.
NOTE. — Reported in 66 N.E.2d 907.