After this case was decided on the authority of Whitman v. Whitman, 223 Ala. 557, 137 So. 666, it came to the notice of the writer that there was a typographical error in the opinion as printed in the report of the case. As printed, the first paragraph of the opinion, so far as pertinent, reads: "The bill does not make out such a case when it shows that there has beenan abandonment or separation and that the complainant and respondent were living together as man and wife when the bill or petition was filed." The manuscript opinion reads: "The bill does not make out such a case when it shows that there has beenno abandonment or separation and that the complainant and respondent are living together as man and wife, when the bill or petition was filed." (Italics supplied.)
The bill in the instant case, after alleging the marriage and the defendant's ability to support and maintain the complainant, avers "that many years prior to the filing of this bill of complaint the respondent ceased to live with the complainant as her husband, and that since such time the complainant and the respondent have not lived together as man and wife; that your complainant continues to reside under the same roof with the respondent, but that complainant and the respondent occupy separate rooms or apartments, and that in fact the respondent ignores and refuses to speak to the complainant, and has refused to speak to her since long prior to the filing of this bill of complaint, and continues so to do; that complainant has not sufficient means to provide for her own support in a separate house, and that respondent wilfully refuses to contribute in any amount to complainant's support unless she continues to reside under the same roof with him; that since long prior to the filing of this bill of complaint the conditions under which complainant has been residing were and continue intolerable; that complainant is habitually subjected by the respondent to indignities, humiliation and insult; that in the conduct of the household affairs the respondent habitually addresses the negro servant and gives orders to such servant in the presence of complainant, and without consulting with and without regard to complainant's wishes or rights; that respondent completely ignores the complainant in the operation and conduct of the household affairs; that complainant has continued to reside in the same house with the respondent on account of hernecessities and of her inability to provide for her ownseparate support, but that complainant and respondent have not cohabited and have not lived together as man and wife since long prior to the filing of the bill of complaint in this cause, and while continuing to live in the same house have been virtually separated for many years; that in addition to the humiliation, insult and indignities to which the complainant has been subjected by the respondent, the respondent has on occasions prior to the filing of this bill of complaint threatened the complainant with violence to her person attended with danger to her life or health, and that from his conduct there is reasonable apprehension of such violence." (Italics supplied.)
If these averments are true, and they must be so considered on demurrer, they not only show a continuing wanton violation of the marital rights of the complainant by the respondent, but malicious cruel treatment, shocking to every sense of human decency, and notwithstanding this, the majority are content, on grounds of policy, to close the door of the court of equity, and deny to her any right to relief.
It is pertinent here to repeat the pronouncement of this court in Glover v. Glover, 16 Ala. 440, 444: "And if it be true that the law, as well as enlightened conscience, creates this obligation, and no court can enforce its performance or compensate *Page 646 for its most cruel and flagitious violation, then indeed has one class of cases been found which falsifies the boasted maxim, 'that for every wrong there is a remedy, and for every injustice an adequate and salutary relief.' "
Likewise, the constitutional guaranty, "that all courts shall be open, and that every person, for any injury done him, in his lands, goods, person, or reputation, shall have a remedy by due process of law; and right and justice shall be administered without sale, denial, or delay." Sec. 13, Const. 1901. (Italics supplied.)
The facts averred show that the complainant has no choice but to remain under the same roof with respondent, other than to take shelter in the streets and become a public charge. This the law does not require. On the facts averred, she is not only entitled to separate maintenance, but might obtain a divorce. Code 1923, § 7409, as amended by Gen.Acts 1933, Ex.Sess., p. 142; Smith v. Smith, 172 Iowa, 329, 151 N.W. 1085; 1 R.C.L. page 938, § 85; note to Fritts v. Fritts, 14 L.R.A. 685; note 6 A.L.R. 66.
I therefore respectfully dissent.