Opinion
(January Term, 1878.)
Divorce from Bed and Board — Construction of Statute — Indignity Offered by Husband.
1. To entitle a wife to a divorce from bed and board under Bat. Rev., ch. 37. sec. 5 (4), the indignity offered by the husband must be such as may be expected seriously to annoy a woman of ordinary good sense and temper, and must be repeated, or continued in, so that it may appear to have been done willfully and intentionally or at least consciously by the husband to the annoyance of the wife.
2. In an action by the wife for divorce from bed and board, where it appeared that the husband at various times in the absence of the plaintiff had had carnal intercourse with a female servant in his bedchamber, from which she became pregnant: it was Held, that the plaintiff was not entitled to the relief demanded.
READE, J., dissenting.
ACTION for divorce a mensa et thoro, tried at Fall Term, 1877, of ROWAN, before Cox, J.
The plaintiff alleged, among other things, that she suspected the defendant of improper intimacy with one Louisa Nash, who was introduced by the plaintiff as a witness, and testified (as stated in the case) that she lived as a servant in the family of plaintiff and defendant, and that during the absence of the plaintiff from home she had carnal intercourse more than once with the defendant in his bedchamber, and that she became pregnant by defendant. During her pregnancy the plaintiff asked her what was the matter with her, and she replied that she was pregnant by defendant; and as soon as the plaintiff heard this statement she proceeded to leave defendant's house. On cross-examination of this witness, the defendant proposed to prove by her that as soon as the plaintiff heard that witness was pregnant by defendant, and when plaintiff was preparing to leave, he begged her not to leave, and promised if she would remain with him he would never be guilty of any other infidelity towards her, and that the plaintiff left (103) immediately thereafter, to which the plaintiff objected, which objection was overruled by his Honor, and the witness testified as above stated; and that plaintiff did leave, notwithstanding the entreaties and promises of reformation by defendant. Witness further testified that she thereafter left defendant's house, but returned several months since and lived in an outhouse of defendant about 100 yards from defendant's dwelling-house, and that after the separation of plaintiff and defendant she had never on any occasion had carnal connection with the defendant. Leah Quillman, a witness for the plaintiff, testified that the defendant only permitted said Louisa to return to his premises after applying in vain to her (witness) to give her shelter, when she advised defendant to take her himself, which he consented to do, remarking at the time that he must provide for his child. There was no evidence that when plaintiff separated from defendant she knew or was informed that criminal intercourse as aforesaid had occurred in the bedchamber of the parties when they lived together. The plaintiff has ceased to live with her husband or on his premises ever since she heard of said adultery.
The plaintiff asked the court to instruct the jury that the conduct of the defendant in having frequent connection with said Louisa in the private bedchamber, and his subsequent conduct in bringing said Louisa to live on the premises, were such indignities offered to plaintiff as to render her condition intolerable and life burdensome. This his Honor declined, but charged the jury that it was for them to say from all the evidence whether the defendant had offered such indignities to the plaintiff as to render her condition intolerable and life burdensome. Plaintiff excepted.
Issues raised by the pleadings were then submitted to the jury, who found: (1) that the parties were husband and wife, and lived in this State three years immediately preceding the commencement (104) of this action; (2) that defendant did commit adultery with Louisa Nash at the house of plaintiff and defendant; (3) that defendant did not treat plaintiff with such cruelty and indignity as to compel her to separate from him and to leave his bed and board; (4) that defendant did not live in adultery with said Louisa after said separation; and (5) that defendant did not offer such indignities to the person of the plaintiff as to render her condition intolerable and life burdensome. Judgment for defendant. Appeal by plaintiff. (See Morris v. Morris, 75 N.C. 168, and Long v. Long, 77 N.C. 304.)
W. H. Bailey for plaintiff.
J. M. McCorkle for defendant.
By the law of this State, a divorce from the bonds of matrimony shall be granted to a wife when her husband separates from her and lives in adultery. Bat. Rev., ch. 37, sec. 41. This act has been on our statute-book for many years. The statutes of perhaps most of our sister states are different. 1 Bish. Mar. and Div., secs. 703-707. We have no occasion to defend the policy of our legislation, but we may express the belief that infidelity on the part of husband is not more frequent here than elsewhere. It is agreeable also to find that the most recent legislation in England, the result of its most mature consideration and experience on this subject, is in principle the same with our own. The English statute may be found in 1 Bish. Mar. and Div., sec. 85, note.
Our act of Assembly further says:
"SEC. 5. The Superior Courts may grant divorces from bed and board on the application of the party injured . . . in the following cases: (1) If either shall abandon his or her family, or (2) shall maliciously turn the other out of doors, or (3) shall by cruel or barbarous treatment endanger the life of the other, or (4) shall offer such indignities to the person of the other as to render his or her condition intolerable and life burdensome, or (5) shall become an habitual drunkard."
The plaintiff does not claim a divorce a vinculo; but it is contended for her that the conduct of the defendant has been such as to bring him within the fourth of the above grounds for a divorce from bed and board; and that the adultery of the defendant under the circumstances attending it was such an indignity to her person as did in contemplation of law render her condition intolerable, etc. It has not been contended here that the indignity intended by the act must necessarily be one to a wife's body. It is conceded that there may be offenses to the mental and moral sensibilities of a wife of such a character and under such circumstances that, if continued, they will amount to cruelty, (106) which, in the sense in which the word is used in the law of England and generally in that of the United States, is the equivalent expression for what is called in our statute "such indignities as render her condition intolerable," etc. 2 Wait Actions and Def., 560, 561. An instance of such an offense would be the keeping of an abandoned woman in the house in which the husband and wife resided, and thus forcing the wife either to abandon her home or to submit to an association repugnant to her affections, her virtue, and her self-respect. Such conduct as this might also come under the second clause. Other examples less strong, but sufficient without violence to the person to constitute manifest cruelty, may be supposed. One of such is found in the recent English case of Kelly v. Kelly, 2 Prob. and Div., 59; 1 Bish. Mar. and Div., sec. 783. Another might be found in Everton v. Everton, 50 N.C. 202. In this case, however, although decided as late as 1857, it was held that the diversion of the husband in shooting one negro woman, the property of the wife, and whipping sundry others of his own, in close proximity to the chamber in which his wife was lying sick in bed, was not cruelty. This case is very far behind all the modern decisions on this subject, and would scarcely be decided in the same way at the present day.
It would be impossible, and we shall not undertake, to decide with any precision the course of conduct which will amount to legal cruelty, or to "indignities, etc.," within the meaning of the act. But it may confidently be said that the indignity, whatever may be its form or nature, must be such as may be expected seriously to annoy a woman of ordinary good sense and temper. If from bad health the wife is morbidly nervous or sensitive, that must be allowed for. But as nothing of that sort is alleged in this case, such a supposition may be omitted from our consideration. Generally speaking, the conduct of the husband must be such as might reasonably be expected to annoy a woman of an ordinarily sound and healthy nature. It must be repeated (107) or continued in, so that it may appear to have been done willfully and intentionally, or at least consciously by the husband, to the annoyance of the wife. He must have reason to believe that his act or course of conduct will greatly and naturally annoy his wife, and must persist in it regardless of such annoyance.
We think the above rule is as favorable to the plaintiff as she can reasonably be thought entitled to. It is perhaps more so than is quite consistent with the authorities. If Everton v. Everton is entitled to any weight at all, it establishes a rule much harsher than this; and the cases of Butler v. Butler, Parsons Eq. Cases, 329, and Kelly v. Kelly, 2 Prob. and Div., 59, which are the most modern cases on this subject, and the most favorable to the plaintiff of any which I have found, say that the annoyance to the feelings of the wife must, either from its character or its persistency, endanger her life or health. See 2 Wait A. and D., 564; Powelson v. Powelson, 22 Cal. 358; Gholston v. Gholston, 31 Ga. 625. Tested by this rule, the case of the plaintiff of course fails; for it is not alleged that her feelings have been shocked to the degree of endangering her life or health.
The question then is, Can the plaintiff's case be brought within the very favorable rule which we have supposed to be applicable to such cases? The acts of adultery by the husband were repeated at intervals during a period of less than nine months, and resulted in the pregnancy of the female servant; but they were all committed during the absence of the wife from her home, and never came to her knowledge until, seeing the condition of the servant, she inquired into the cause of it, and upon being informed, she immediately left the husband's house, and has never since returned to it.
(108) In estimating the alleged indignity, I dismiss from consideration that it was committed in the bedroom in which the husband and wife slept when she was at home, as being a mere poetic and fanciful, and not a real, aggravation. Whatever weight might be assigned to it, it was unknown to the plaintiff until after this action was brought. After the offense of the husband became known to the wife, it was never repeated, and the husband entreated forgiveness and promised future fidelity. It is evident that the case does not come within the principles which we have supposed should apply. The conduct of the husband, though immoral and blamable, was only such as many a sensible and good-tempered wife has thought it wise, and dutiful, and according to the impulses of her heart, to be blind to, or generously to forgive. The husband's conduct was not consciously or willfully to the annoyance of the wife. His acts were not intended or expected to annoy her, for he never expected her to know of them. The indignity to her feelings was not willful on his part, but accidental, resulting from her inquiries, which were not anticipated by him.
We cannot think the defendant's conduct, however reprehensible, was such "indignities" as was intended to be covered by the statute, or was calculated to render the condition of any reasonable woman "intolerable or her life burdensome." This is not a case in which the law ought to interfere to sanction, and perhaps perpetuate, the separation of a married pair who may again unite without impropriety, and without the loss of self-respect on the part of either, and, taught by experience, may live henceforth happily together. An English poet once gave advice to husbands, which Lord Chatham made immortal, even if its own good sense had not otherwise have served to make it so, by quoting it in one of his great speeches on the policy of Britain towards America. The advice will equally teach wives how to manage their husbands:
(109)
"Be to his faults a little blind, Be to his virtues very kind, And clap your padlock on his mind."
PER CURIAM. Action dismissed.
Cited: Page v. Page, 161 N.C. 175.