Summary
In Coble v. Coble, 55 N.C. 392, it is said that it is not necessary that to render the plaintiff's condition intolerable and life burdensome there should be a striking, or even a touching of the body, but foul and unjust accusations often repeated, with a withdrawal of intercourse and refusing to bed with his wife, and (in that case) threats of deadly violence, were sufficient. Here we have all these except the last, and in addition we have here the offer to strike and the express charge of the illegitimacy of the children.
Summary of this case from Green v. GreenOpinion
(June Term, 1856.)
To entitle the wife to divorce a mensa et thoro, it is not necessary that the indignities complained of as rendering her condition intolerable and her life burdensome, should be a striking, or even touching of, the body, but foul and injurious accusations often repeated, with a withdrawal of all intercourse, refusing to bed with his wife, and a denial that she is his wife, with threats against her life, are sufficient indignities to entitle the wife to this relief.
PETITION for divorce, from the Court of Equity of Alamance County.
Norwood for plaintiff.
No counsel for defendant.
The petition alleges that plaintiff and defendant intermarried about twenty-four years ago; that some four years after the marriage, the defendant, being of a jealous temperament, charged plaintiff with infidelity to him, which was untrue; that she endeavored by kindness to eradicate this jealousy from his mind, and for some time thought she had done so, but that in 1852, it appeared anew; about that time, the defendant, upon the most frivolous and groundless pretences began to accuse her of an improper intimacy with one Dr. _____, a young man who had lived for two years with defendant and the petitioner; that he perpetually harrassed her with these painful accusations, and manifested by his language and conduct, contempt and hatred towards her; that the young man spoken of left the house, but his absence wrought no change whatever in defendant's conduct; that he continued his cruel treatment; refused to recognize her as his wife and to bed with her, and withdrew himself from her society; that her friends sympathizing with her, endeavored to bring about a reconciliation, but he repelled all approaches of this sort; and, on one occasion, told her father, who was thus interposing in her behalf, that "he had lead in his gun, and would have satisfaction;" that, thus finding her life with the defendant intolerable and burden some, and apprehensive of personal violence, she left his house, and has since resided with her father and friends, and has been maintained and supported by their kindness; that defendant refuses all offers on the part of the plaintiff to return to his house or to make any provision for her. When applied to that effect, his answer was that he would give her nothing except (393) what she could get by law.
The petition sets forth that, just before filing the petition, she went to defendant's house with two of her friends, whom she procured to intercede with him, but he again refused to live with her; that she had carried some clothing with her, and placed it in one of the rooms of the house, from which defendant had it removed, and locked the room, and the other rooms of the house, and left home.
The plaintiff alleges that the defendant is selling off his property, and preparing to remove out of the State.
The prayer of the bill is for a divorce from bed and board, and for alimony; and for a writ to restrain the defendant from removing his property beyond the jurisdiction of the State; also for general relief.
The defendant filed a general demurrer, and the cause being set down for argument on the demurrer, was sent to this Court by consent.
The bill is filed for the purpose of obtaining a divorce, a mensa et thoro, and also for alimony, under the 3rd section of the 39th chapter of the Rev. Stat. The defendant has put in a general demurrer, which must be overruled if there be any part of the bill upon which the plaintiff is entitled to relief. Adams' Eq. 335; 1 Dan. Chan. Prac. 538, 540. Earp v. Earp, 54 N.C. 239.
The third section of the act referred to specifies several distinct things, the doing of either of which by a husband will entitle his wife to a partial divorce, and to alimony. If he "shall abandon his family, or maliciously turn his wife out of doors, or by cruel and barbarous treatment endanger her life, or offer such indignities to her person as to render her condition intolerable, or her life burdensome," the law declares that he has so far forfeited his marital rights, that his (394) wife may, if she desires it, have a separate bed and board, and claim a separate maintenance out of his estate. In order to obtain this, the 5th section of the same act provides, that she must exhibit a petition or bill either in a Superior Court of Law, or a Court of Equity, in which she must set forth "particularly and specially the causes of complaint," which, according to another section, must have existed six months prior to the filing of her petition or bill. The 8th section of the corresponding chapter of the Revised Code, dispenses with the six months prior existence of the causes of complaint, when the husband is removing, or about to remove, his effects from the State; but as the bill in this case was filed before that Code went into operation, it is governed by the provisions of the Revised Statutes.
We have now to enquire whether the plaintiff has, in her bill, set forth sufficient causes of complaint to entitle her to relief under either clause of the act. She charges that her husband, upon the most frivolous and groundless pretences, accused her of a criminal intimacy with a young physician who boarded in the family, and manifested, by his language and conduct, contempt and hatred for her; that the young gentleman left their house, but his absence produced no favorable change in the demeanor of her husband towards her; that he declared she was no longer his wife, and refused to sleep in the same bed with her; that her friends attempted to interpose and bring about a better state of feeling and conduct on the part of her husband towards her; that he was inexorable, positively and cruelly rejecting every proposal for a reconciliation, and on one occasion, said to her father, who was endeavoring to interpose his good offices, that "he had lead in his gun, and would have satisfaction." She then states that, finding her life with her husband burdensome and intolerable, she had left him and gone to live with her father and friends, by whose bounty and kindness she had since been supported and maintained; that she had offered to return to her husband, but he had rejected all her advances; and that, on a recent occasion, she had gone, in company with two of her friends, to his house, with some of her clothes, and put them in a room, and that (395) he had caused them to be removed, locked the house and left home. This latter circumstance we cannot take into consideration, because it occurred less than six months before the filing of the bill. That, however, is not of much consequence, as we are satisfied that the other allegations are abundantly sufficient to bring her case within the operation of the clause which entitles her to relief for such indignities offered to her person, as to render her condition intolerable, or life burdensome. What is an indignity to the person? "Indignity" is defined by Mr. Webster to be, "unmerited, contemptuous conduct towards another; any action towards another which manifests contempt for him; contumely, incivility, or injury accompanied with insult." It is manifest from this definition, that an indignity to the person may be offered without striking the body, or even touching it in a rude and offensive manner. Contumelious words, especially when accompanied with a contemptuous demeanor towards a person, may amount to an indignity which would be felt by a sensitive mind with far keener anguish than would be inflicted by a blow. And what, to a virtuous woman, can be more contumelious than a charge made by her husband of infidelity to her marriage vow? What greater incivility or injury than his refusal to recognize her as his wife, and his rejection of her from his bed? What greater manifestation of hatred and contempt than to threaten her with deadly violence? We are satisfied that an indignity to her person may be offered without any lawful interference with her body, which, indeed seems to be provided against by the clause which protects her from such "cruel and barbarous treatment as may endanger her life." We are satisfied further, and those allegations of the bill, upon which we have commenced, fully make out the charge of offering such indignities to her person as to make her condition intolerable, on her life burdensome; if, indeed, they do not make out another charge of maliciously turning her out of doors. Upon the latter, though, it is unnecessary for us to express an opinion, as the (396) former is sufficient to entitle her to all the relief which she seeks.
The demurrer must be over-ruled, with costs, and the defendant ordered to answer; and to that end the cause must be remanded to the Court from which it was sent.
Per curiam.
Decree accordingly.
Cited: Erwin v. Erwin, 57 N.C. 84; Taylor v. Taylor, 76 N.C. 436; White v. White, 84 N.C. 344; Jackson v. Jackson, 105 N.C. 439; Green v. Green, 131 N.C. 535; Pearce v. Pearce, 226 N.C. 310.