I concur in the conclusion reached by my associate, MR. JUSTICE TERRELL, in this particular case, but with reservations. I consider a case like this the single exception that can be made to what was held in Phinney v. Phinney,
*Page 593"Under the statutes of this state, permanent alimony cannot be awarded to the former wife in a suit by the husband where the divorce is granted for the fault of the wife."
The statutes of this state in providing for divorce have vested courts of equity with jurisdiction to administer the relief authorized. To a certain extent it may therefore be said that the granting of a divorce, even where a clear cause for divorce has been made out in the allegations and proof, rests upon those general equitable considerations which control courts of chancery in every proceeding of which they may be given statutory jurisdiction.
One principle of equity is that: "He who seeks equity must do equity." Since divorce is a matter of equitable cognizance in Florida, there is not any reason why this equitable maxim should not apply to divorce cases, as well as other equitable proceedings, when circumstances require the maxim to be enforced.
In this case it clearly appeared that the wife had given her husband just cause for divorce on the ground of habitual indulgence in violent and ungovernable temper. The parties were without children and I do not think it should be said without qualification that, where a woman decides to make herself a female "dreadnaught" in the marital domicile and elsewhere, and thereby forfeits her rights to remain in the status of a wife, that the victimized "mere man" in the matrimonial compact can either equitably or legally, be compelled to continue to support a wife separated from him not for any fault of his, but because of her own inherent meanness and vicious propensity for marital aggressions that have brought about her predicament.
To hold otherwise would necessarily impose upon any man who dared to enter the matrimonial compact an obligation of uxoriousness for which I can find no legal warrant suggested by either reason or authority.
The evidence in this case shows, however, that notwithstanding all the cause for divorce of which the wife in this case had become guilty, that the husband had during the *Page 594 period of the wife's coverture, unjustifiably inflicted on his wife certain substantial permanent personal injuries for which she could have sued him and recovered damages, but for the rule of law that prohibits a wife from recovering from her husband for a tort of that kind committed by him on her person during coverture. So long as the marital status remains intact, the wife is not without remedy for such a wrong, because she continues to be entitled to her husband's support. And the fact that the husband has, by an act of violence, so injured her as to cripple her for life, merely adds to the husband's expense on her account, because the husband has to bear the additional burden created by reason of his own wrong, so long as the marital status continues.
But the unconditional dissolution of the marriage on complaint of the husband, operates under the Phinney case,supra, to relieve the husband of any further duty to contribute to his wife's support. It would therefore deprive the permanently injured wife of the only compensation she could have under the law for the wrong done her by her husband's violence to her person intra matrimoniis vinculis.
This circumstance of permanent personal injuries unjustifiably caused by the husband, in my judgment brings into consideration an independent equity in the wife's favor, which the Court, in the adjudication of the husband's claim for a divorce from her, may require the husband to satisfyas a condition precedent to his being granted the equitable relief of divorce to which he may be entitled so far as his right to be relieved of the matrimonial association is concerned.
In other words, the exception here made to the rule of Phinney v. Phinney, supra, may be stated to be, that where during coverture the husband has unjustifiably inflicted on his wife permanent and substantial personal injuries, which *Page 595 would be redressible as a tort but for coverture, that a court of equity, vested with jurisdiction to grant the relief of divorce to the husband for causes occasioned by the wife's conduct toward him, may, and in proper cases of real necessity should, require the husband to do equity toward the permanently injured wife, by paying to her theequivalent of an allowance of alimony for her support, as acondition precedent to the husband's being granted the divorce he prays for, and is otherwise entitled to receive.
But the foregoing is as far as I think any exception to the rule of Phinney v. Phinney, supra, can be acknowledged or extended. I find myself wholly unable to agree that a court of equity can award a guilty wife an allowance as permanent alimony on any other consideration except that just stated, where the suit is by the husband and the divorce is granted for the wife's fault.
To hold more than this would subject an innocent husband to be offered up in the name of equitable principles, as a living sacrifice to the folly of having been inveigled into a connubial misalliance with an unconscionable virage, fair of form, perhaps, but who, like the foolish woman referred to by Solomon in his Proverbs "buildeth not her house, but plucketh it down with her hands."
The every day phrases "gold diggers" and "alimony chiselers," as applied to shrewish wives, who provoke their husbands by their intemperate or violent conduct to seek relief in a court of divorce, while such wives remain personally free from provable adultery, should not be given any new significance in this jurisdiction by over-ruling Phinney v. Phinney, directly or indirectly. Yet it cannot be denied that the plainest principles of justice demand that a permanently injured wife, so injured without adequate excuse, should not be cast adrift by a Court of equity without salvage for her wrongs, merely because her unbridled tongue, or an habitual quirk of temper, has made *Page 596 it impossible for her husband to continue to live with her.
Therefore, with the foregoing modification and reservation herein stated, I concur in the opinion and conclusions stated by MR. JUSTICE TERRELL, which, because of the sweeping, general language used by him, may be interpreted as practically over-ruling Phinney v. Phinney, supra, which impression, I am sure, is by no means intended to be conveyed.
BUFORD, C.J. AND BROWN, J., concur.
