For majority opinion see 277 Ala. 323, 169 So.2d 767.
SIMPSON, Justice (dissenting).
It is my view that the evidence more than justified a decree a vinculo rather than the instant one which throws the parties back upon society in dangerous positions, where a husband is without a wife and a wife is without a husband.
Unquestionably the trial court, in the exercise of a wise discretion, had the right to enter a decree a vinculo since under our statutes and decisions both decrees rest upon the same ground and the bill, containing a prayer for general relief, would have authorized such a decree. Considering the circumstances of these parties, I am persuaded that justice demanded that an absolute divorce be rendered. They have been married for over thirty years and the evidence would convince the impartial mind that they will never be reconciled, which is one of the arguments most frequently used in defense of divorces from bed and board.
The text writers and the decisional law point out that a divorce from bed and board is a poor arrangement at best, as is stated in 27 C.J.S. Divorce § 160, p. 786:
I think that when the evidence is such that it is apparent that the parties will never again live together in peace and harmony, sound equitable principles dictate that the court render an absolute divorce where statutory grounds are shown. Quoting from Keezer on Marriage and Divorce, Morland's Third Edition, 1946, § 244, the Kentucky Supreme Court noted in Coleman v. Coleman, Ky., 269 S.W.2d 730:
The following statement in the majority opinion is certainly an inaccurate appraisal of the law: "Regardless of the argued desirability of granting a full divorce in all cases where the grounds for a divorce are established, such policy is beyond our province in view of the clear statutory provisions providing for the award of limited divorces where the party applying desires such a limited decree". It will be remembered that in this case there was a prayer for general relief and to say that a court of equity would have no discretion to decree under the evidence a divorce a vinculo as well as a mensa is not only contrary to general principles of equity but is too hidebound a view for me to accept.
On the basis of these considerations I would modify the decree below by granting the parties a complete divorce.