Opinion
06-20-1893
DISBOROUGH v. DISBOROUGH.
Mark R. Sooy, for complainant. George M. Robeson, for defendant.
Bill for divorce by Julia C. Disborough against Isaiah Disborough. Dismissed.
Mark R. Sooy, for complainant.
George M. Robeson, for defendant.
GREEN, V. C. The parties were married in Camden, April 30, 1889. The defendant was 67 years of age, and the complainant somewhat his junior. Both had been previously married, and each had children by the former marriages. After the marriage the complainant returned to Philadelphia, where she had been boarding, and the defendant returned to his home in Bordentown. The complainant went to Bordentown to the home of her husband to live on the 8th of May following her marriage. She files her bill for a divorce a mensa et thoro on the ground of the defendant's extreme cruelty.
Mr. Justice Van Syckel, in Close v. Close, 25 N. J. Eq. 526, at page 529 says: "Without attempting to give a definition of legal cruelty applicable to all cases, I think it may be safely said that, where the husband has been guilty, or there is reasonable ground to apprehend that he will be guilty, of any actual violence which will endanger the safety or health of the wife, or where he has inflicted upon her any physical injury, accompanied by such persistent exhibition of ill feeling and opprobrious epithets as will endanger her health, or render her life one of such extreme discomfort and wretchedness as to incapacitate her to discharge the duties of a wife, the decree of separation should be pronounced. Whether, in a case of extreme hardship, in the absence of any actual or apprehended physical injury, she will be remitted for the redress of her grievances to the domestic forum, must be left for adjudication when the case presents itself." No personal violence inflicted or threatened by the defendant personally upon the complainant has been shown in the case. It is alleged in the bill, and the evidence shows, that the parties occupied the same bedroom for about a week, after which the defendant refused to continue to do so, for reasons which he stated to the complainant's son and to a Mr. Cullen. This excuse is substantially that he could not, with due regard to his health, continue those relations. The next charge in the bill is that, after the first week of their living together, defendant began and continued to treat the complainant unkindly, and with indignity and harshness, and would not allow her to prepare the food of the family, but that he himself, once a week, would cook such food as he chose, in quantity to last a week, as he said. The evidence shows that the tastes of the two were not similar, and that defendant did insist on cooking his own victuals, but he testifies that he provided her with everything that she desired. She next charges that her husband used vile and indecent language to her, and of and concerning her to her relatives and friends. It does not appear that such remarks were used in connection with any demonstration of violence or threats of bodily injury. She next charges that he continued to treat her with every species of indignity he could devise, and declared to people living near neighbors to her: "I am going make it so damned hot for her, (meaning your oratrix,) she would not stay, and I cannot live with such a woman." It does not appear that, previous to her leaving, this remark of her husband's was communicated to her.
No decree can be predicated upon the general charges which have been mentioned. Moores v. Moores,16 N. J. Eq. 275. I do not think that any of these charges, or the evidence which has been produced to sustain them, in any way justifies a decree under the section of the act which is invoked by this bill. The case, if it can be sustained at all, must rest upon the charge that in October, 1889, the defendant accused the complainant and her son Frank, and caused them to be arrested on a charge, of conspiracy to administer poison to him. The defendant did make a complaint to that effect before a magistrate, and in pursuance thereof she was arrested, and held to bail for her appearance at the next term of the Burlington county court. The facts which led up to this action on his part were, as he says, that his wife was in the habit of remaining out late at night, and that this, in connection with other circumstances, aroused his suspicion with reference to her affection, and, acting on the advice of his counsel, in the early part of July he employed a detective to watch his wife. The person so employed was a constable of a small village called Whitehill, near Bordentown, and he proceeded in his own way to ascertain what he could of the family secrets. Nothing, however, was developed from his report. In the latter part of August—the exact date being not very satisfactorily fixed, but on or about the 29th of that month—the defendant proposed to go to Trenton to attend to some business which he had there, and says that on informing his wife of that intention she offered to prepare his breakfast for him, which she did, while he was getting ready for the trip. That he partook of the food cooked by her for him, and was, almost immediately after he had finished, taken violently sick with purging and vomiting in the yard where he had gone after his breakfast. That in going towards the depot he stopped at the house of his married daughter Mrs. Thomas, and got her to accompany him to Trenton. On arriving at that place he went to the office of Mr. Crouch, where he was again taken with vomiting. From that place he went elsewhere, to attend to other business, and with his daughter took a horse car and went to the park, in the hope that he might get better. He, however, continued to feel very badly, and returned to Bordentown, where they arrived late in the afternoon. He stopped to see Dr. French, who prescribed for him, and gave him some medicine, and told him to go home and keep himself quiet That he did go home, lay down on a lounge, got some water, and cloths which he saturated and placed over his eyes, lying on the lounge until between 10 and 11 o'clock at night, and then went to bed. He describes his sickness by saying that he was affected in every way, almost; that his stomach was burning up; his eyes were so that he could hardly see across the room ;his head hurt him and pained him right away early in the morning, just as soon as he got his breakfast; that he vomited during the day, and could eat nothing; that for three or four days after he could not get his eyes right so that he could read or see anything; that it left his stomach with a burning sensation, so that he could not eat anything; and that he did not recover his health for two or three months. Dr. Edward B. French, his physician, says that he called on him in the afternoon, towards evening. That he was suffering from gastrinal intestinal trouble and irritation of the stomach. The doctor thinks he vomited in his office. That he treated him for gastrinal intestinal catarrh or irritation of the stomach. That he did not know what the trouble was at that time. He saw him afterwards, and that his symptoms were those of gastrinal intestinal irritation, but that the edema of the eyelids was very suspicious. That this might be produced by arsenical poisoning; it was such as might be produced by arsenical poisoning. By this he means dropsy of the eyelids, which might be produced by arsenical poisoning. That his condition immediately afterwards was loss of flesh, diarrhea, and dyspeptic symptoms, all of which could be naturally produced by arsenical poisoning in small doses. He has not treated him upon the idea that he had arsenical poisoning, but he treated him for gastric irritation such as would be produced by poisoning. On cross-examination he says the gastric irritation might be produced by gastrinal catarrh, and is one of the frequent causes. He says he did not examine him chemically, but the pathological symptoms would denote arsenical poisoning; that the physiological symptoms indicated arsenical poisoning, but that is not positive evidence of arsenical poisoning; and that these same symptoms might be caused by improper eating. On the 21st of September the defendant, being advised by his counsel that he had a right so to do, in the absence of his wife from the house procured a key, and unlocked her bureau drawers, and says that he found therein a package of letters and an envelope containing a powder; that he took these letters and the powder to his counsel, Mr. Atkinson. Without examining them in detail, there are among them some letters from the complainant's son Frank, which contain expressions of hostility and enmity to the defendant, referring to him in contemptuous terms. Mr. Atkinson says that he received the powder on the 22d of September, and took it to a drug store. From there, without determining its character, be went back to the house, where the defendant was waiting for him, and the two went to see the complainant at the home of the parties He says they found the complainant there writing a letter. That he took the powder, and walked up to table where she was writing, laid the package down, and asked her if she had ever seen it before, and she said, "No." That he then untied it, and showed her the powder, and she said it was a face powder that had been sent her by some of her family. Hesaid,"Itis a queer looking face powder." That she was very nervous; not excited, but nervous and in tremors. On his making the remark that it was a queer looking face powder, she then said it was a powder that had been sent her by her physician at Bristol for a sore limb she had, and she at once accused her husband of having got it out of a little red pocketbook. That, going up to him, (indicating with fist up,) she said, "You have got this out of my little red pocketbook." Mr. Atkinson then said, "Now, Mrs. Disborough, that is an important fact, and if you produce that red pocket-book it will corroborate what yon say, and will be very important to you;" and "she went upstairs to get the 'little red pocketbook,' as she called it. We waited there for some fifteen minutes, when she came down, and said she could not find any such pocketbook." That he then spoke to her about the expressions in the letters he had seen, and the threats contained in those letters. That she became very much excited, being confronted with the evidence which he had in his possession, flew up at her husband, and shook her fist in his face, and accused him of going into her private drawers, and meddling with her things. They then had some words which he does not pretend to remember, and he then told her he should have the powder analyzed, and that, if it proved to be a poisonous substance, some action would probably be taken against her. That after he had his dinner he drove to Burlington, and delivered the paper to Dr. Shippen Wallace. Dr. Shippen Wallace, who is an expert analytical chemist, examined the powder given to him, and declared the same to be arsenious acid, and the kind which is ordinarily sold under the name of "Rough on Rats." Dr. Wallace made his report on the result of his analysis, and under the advice of counsel the defendant took the proceedings resulting in the arrest of complainant and her son Frank for conspiracy to administer poison to him. This advice was partially founded upon the contents of letters written to the complainant by her son Frank, and found in her drawer. The letters of August 27, September 2, and September 9, 1889, not only apply the most opprobrious epithets to the defendant, and contain threats of personal violence, but are evidence, of intense hatred and a disposition to deal summarily with him.
Church, C. J., in Kennedy v. Kennedy, 73 N.Y.369, at page 374 says: "If it shall appear that the threats of violence were of such a character as to induce a reasonable apprehension of bodily injury, and that the charges of infidelity were made in bad faith, as auxiliary to, and in aggravation of, the threatened violence, I think this plaintiff may be en titled to relief in this action. If, on the other hand, these charges were made in good faith, and especially if the defendant had reasonable grounds for believing them true, and if the threats proceeded from mere casual ebullitions of passion, and were used to emphasize the charges which the defendant had reason to believe were true, and without any real intention to inflict bodily harm, and if the plaintiff had no sufficient reasonfor so believing, it is clear she would not be entitled to a divorce. If a husband has reason to suspect his wife of infidelity, it is neither cruel nor inhuman to charge her with it, although personal violence is not justifiable." 1 am not prepared to say that, all things considered, the defendant did not have reasonable grounds for making the complaint which he did. There is no doubt of his serious illness on the day that he went to Trenton, and that this illness was attended with symptoms of arsenical poisoning. The discovery by him of a powder in his wife's bureau drawer, and the contradictory statements made by her with reference to there being powder there and its character, her evident estrangement, and the threatening letters found by him in the same hiding place as the powder, with the fact of his continued sickness, and other circumstances not detailed, but which appear in the evidence, would, I think, lead a great many men to the suspicion in good faith that an attempt had been made upon him. There is no occasion to inquire, in this proceeding, whether the defendant did in fact knowingly and willfully administer this substance to her husband. The only question is whether he had reasonable ground to so believe, and did in fact believe it. If so, his action cannot, in my judgment, be considered as coming within the marital offense called "extreme cruelty." In my judgment the evidence does show he had such reasonable ground, and did so believe when he made the complaint. This conclusion renders unnecessary an examination of the question raised on the argument, whether the arrest was such an act of personal violence as to amount to extreme cruelty. I am of opinion that the complainant is not entitled to a decree, and will so advise.