Opinion
(June Term, 1862.)
There are circumstances under which the striking of his wife with a horsewhip, or switch, by a husband, and inflicting bruises, would not be the ground of a divorce. Where, therefore, such violence was made the ground of an application for a divorce, it was Held, to be necessary that the bill, or petition, should set forth particularly and specially what she did and said immediately prior to and during such use of force.
THIS is an appeal from an interlocutory order of Osborne, J., in the Court of Equity of NORTHAMPTON, allowing to the petitioner for a divorce alimony pendente lite.
The petitioner states that she was the widow of one David Futrell, and intermarried with the defendant in November, 1860; that she had a reasonable prospect of happiness from the marriage, herself well bred and of a respectable family, and her husband not less than a fair match for her; that in this she was greatly disappointed; that her husband manifested great coarseness and brutality, "and even inflicted the most severe corporal punishment. This he did on two different occasions, once with a horse-whip and once with a switch, leaving several bruises on her person." "He used towards her abusive and insulting language, accused her of carrying away articles of property from his premises to her daughter by a former husband; refused to let said child live with her; has frequently at night, after she had retired, driven her from bed, saying that it was not hers, and that she should not sleep upon it. He has also forbade her sitting down to his table in company with his family," and that "by such like acts of violence and indignity has forced her to leave his house, and that she is now residing with her friends and relatives, having no means of support for herself and an infant son born within the four past weeks." These facts, the ground of this her complaint, have existed at least six months prior to the filing of this bill. "Your petitioner, during the whole time of her intermarriage with the defendant, saith that she has been a dutiful, faithful and affectionate wife, and desired so to continue during life, but the outrages upon her person and rights have made it her desire, as well as duty to seek a perpetual separation from his bed, his board, and from the bonds (323) of matrimony." The bill prays accordingly and for alimony.
At the term to which the process was returnable the plaintiff's counsel moved for alimony pendente lite, when the following order was made: "This cause coming on to be heard, it is ordered upon hearing of the cause and upon affidavits as to the estate of the defendant, that the clerk and master give notice to the defendant to pay into the office of the clerk and master for Northampton County the sum of $350, as alimony, for the subsistence of the said plaintiff and her child until the next term of the Court, and that the payment of the above sum be made on or before 15 December, 1861."
From this order the defendant prayed an appeal to the Supreme Court, which was granted.
Barnes, for the plaintiff.
W. N. H. Smith, for the defendant.
The Legislature has deemed it expedient to enlarge the grounds upon which divorces may be obtained; but as a check or restraint on applications for divorces, and to guard against abuses, it is provided that the cause or ground on which the divorce is asked for shall be set forth in the petition "particularly and especially." It is settled by the decisions of this Court that this provision of the statute must be strictly observed, and the cause or causes for which the divorce is prayed must be set forth so "particularly and especially" as to enable the Court to see on the face of the petition that if the facts alleged are true the divorce ought to be granted: Everton v. Everton, 50 N.C. 202. The correctness of this construction is demonstrated by the fact that upon appeals from an order allowing alimony pending the suit, like the present, this Court is confined expressly to an examination of the cause or causes of divorce, as set out on the face of the petition, and can look at nothing else in making upon the decision; Rev. Code, ch. 40, sec. 15.
By the rules of pleading in actions at the common law every allegation of fact must be accompanied by an allegation of "time (324) and place." This rule was adopted in order to insure proper certainty in pleading, but a variance in the allegata and probata, that is, a failure to prove the precise time and place as alleged in the pleading, was held not to be fatal, unless time or place entered into the essence and made a material part of the fact relied on in the pleading.
There is nothing on the face of this petition to show us that time was material, or a part of the essence of the alleged cause of divorce; that is, that the blows were inflicted at a time when the wife was in a state of pregnancy, with an intent to cause a miscarriage, and put her life in danger, and there is nothing to show us that the place was a part of the essence of the cause of divorce, that is, that the blows were inflicted in a public place, with an intent to disgrace her and make her life insupportable, so we are inclined to the opinion that it was not absolutely necessary to state the time and place, or if stated, that a variance in the proof, in respect to time and place, would not be held fatal.
But we are of opinion that it was necessary to state the circumstances under which the blow with the horse-whip and the blows with the switch were given; for instance, what was the conduct of the petitioner; what had she done or said to induce such violence on the part of the husband? We are informed by the petitioner that she was a woman "well-bred and of respectable family, and that her husband was not less than a fair match for her." There is no allegation that the was drunk, nor was there any imputation of unfaithfulness on either side (which is the most common ingredient of applications for divorce), so there was an obvious necessity for some explanation, and the cause of divorce could not be set forth "particularly and specially," without stating the circumstances which gave rise to the alleged grievances.
It is said on the argument that the fact that a husband, on one occasion, "struck his wife with a horse-whip, and on another occasion with a switch, leaving several bruises on her person," is, of itself, a (325) sufficient cause of divorce, and consequently the circumstances which attended the infliction of these injuries are immaterial, and need not be set forth. This presents the question in the case:
The wife must be subject to the husband. Every man must govern his household, and if by reason of an unruly temper, or an unbridled tongue, the wife persistently treats her husband with disrespect, and he submits, to it, he not only loses all sense of self-respect, but loses the respect of the other members of his family, without which he cannot expect to govern them, and forfeits the respect of his neighbors. Such have been the incidents of the marriage relation from the beginning for the human race. Unto the woman it is said, "Thy desire shall be to thy husband, and he shall rule over thee," Genesis, ch. 3, v. 16. It follows that the law gives the husband power to use such a degree of force as is necessary to make the wife behave herself and know her place. Why is it that by the principles of the common law if a wife slanders or assaults and beats as neighbor the husband is made to pay for it? Or it the wife commits a criminal offense, less than felony, in the presence of her husband, she is not held responsible? Why is it that the wife cannot make a will disposing of her land? and cannot sell her land without a privy examination, "separate and apart from her husband," in order to see that she did so voluntarily, and without compulsion on the part of her husband? It is for the reason that the law gives this power to the husband over the person of the wife, and has adopted proper safeguards to prevent an abuse of it.
We will not pursue the discussion further. It is not an agreeable subject, and we are not inclined, unnecessarily, to draw upon ourselves the charge of a want of proper respect for the weaker sex. It is sufficient for our purpose to state that there may be circumstances which will mitigate, excuse and so far justify the husband in striking the wife "with a horse-whip on one occasion and with a switch on another, leaving several bruises on the person," so as not to give her a right to abandon him and claim to be divorced. For instance, suppose a husband comes home and his wife abuses him in the strongest (326) terms — calls him a scoundrel, and repeatedly expresses a wish that he was dead and in torment! and being thus provoked in the furor brevis, he strikes her with the horse-whip, which he happens to have in his hands, but is afterwards willing to apologize, and expresses regret for having struck her: or suppose a man and his wife get into a discussion and have a difference of opinion as to a matter of fact, she becomes furious and gives way to her temper, so far as to tell him he lies, and upon being admonished not to repeat the word, nevertheless does so, and the husband taking up a switch, tells her if she repeat it again he will strike her, and after this notice she again repeats the insulting words, and he thereupon strikes her several blows; these are cases in which, in our opinion, the circumstances attending the act, and giving rise to it, so far justify the conduct of the husband as to take from the wife any ground of divorce for that cause, and authorize the Court to dismiss her petition with the admonition, "if you will amend your manners, you may expect better treatment"; see Shelford on Divorce. So that there are circumstances under which a husband may strike his wife with a horse-ship, or may strike her several times with a switch, so hard as to leave marks on her person, and these acts do not furnish sufficient ground for a divorce. It follows that when such acts are alleged as the causes for a divorce, it is necessary in order to comply with the provisions of the statute, to state the circumstances attending the acts and which gave rise to them.
It was suggested that the averment at the conclusion of the petition, which is made after the averment, "that the facts which are made the ground of this complaint have existed at least six months prior to the filing of this bill"; "your petitioner during the whole time of her inter-marriage with defendant, saith that she has been a dutiful, faithful and affectionate wife, and desired so to continue during life, but the outrages upon her person and rights have made it her desire (327) as well as duty to seek a perpetual separation from him," is sufficient to apply the defect in not setting out "particularly and specifically" the circumstances under which the blows were inflicted on her person.
We do not think a general averment of this kind, unconnected as it is with the allegations of fact, can be allowed to have the effect of the particular and special statement, which the statute requires. It is not traversable, and we cannot say, as a conclusion of law, what may, in her opinion, be such conduct as is consistent with the character of a dutiful, faithful and affectionate wife. It is unnecessary to notice the other matters of complaint set out in the petition, because they are admitted not to be, of themselves, sufficient, and are put in as makeweights or props of the main causes, which we have fully adverted to.
Nor is it necessary to notice the objections, because of the fact that the bill had not been exhibited to a Judge and his fiat for process obtained.
There is error; the decretal order will be
PER CURIAM. Reversed.
Cited: S. v. Black, 60 N.C. 264; White v. White, 84 N.C. 342; Jackson v. Jackson, 105 N.C. 438; O'Connor v. O'Connor, 109 N.C. 143; Ladd v. Ladd, 121 N.C. 121; Vann v. Edwards, 128 N.C. 428; Dowdy v. Dowdy, 154 N.C. 559; Alexander v. Alexander, 165 N.C. 46.
Dist.: Taylor v. Taylor, 76 N.C. 435.
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