Waltermire v. . Waltermire

Danforth, J. The courts were not troubled in this case with contradictory statements nor the evidence of casual observers whose inferences might be inflamed or partial, as their sympathies went with one or the other party. They have had only the testimony of the defendant, and that given not voluntarily or as a witness in her own behalf, but on compulsion of the plaintiff and then left by him undisputed. Tet from this testimony the courts below have reached different conclusions, the trial judge relieving the plaintiff by a decree in his favor, and the General Term adjudging that the plaintiff was at fault, and not only to be defeated by his own misconduct, but that by reason of it the defendant was entitled to recover upon her affirmative allegations. A new trial was, therefore, ordered, but the plaintiff by appealing makes that impossible, and he *187 consents to judgment absolute if the decision shall be affirmed.. We think the evidence justified the conclusions of the General Term. The parties were married in 1834, and from that time until September, 1882, nearly half a century, lived together as husband and wife, she rendering wifely service as a helpmate in all that that term implies, until, as she alleges, compelled “ by his faithless and hateful conduct as a husband, and his cruel and inhuman treament, to leave his side.” The evidence in the case was adopted by the court as the defendant’s pleading. From that it appears that in 1877 the plaintiff laid violent “ hands upon her, led her to the door, threatened to knock her down, and struck at her twice.”' Upon another occasion, falling to the floor from sickness,. “ he said it was a pity she ever got up; ” and again he said,, “ I will be glad when you draw your last breath.” He called her “ all the bad names that belong to a bad woman“ a dirty bitch,” “a liar,” “a whore.” He accused her of being- “ with different men in the neighborhood — naming several — and having with them improper intercourse.” These are the-gravest circumstances that characterize his conduct as “ cruel and inhuman.” There are many others which made her life miserable and rendered it unfit that she should five with him, and impossible for her to do so with any sense of self-respect, or with any comfort. They were continuous arid not occasional. Those mentioned bring the case within the statute-which for cruel and inhuman treatment permits a separation (Code, § 1762); and that relief, by the terms of the same-statute (Id. § 1720), may be had by the wife, although the husband is the plaintiff. The circumstances which constitute-his misconduct not only defeat his action, but entitle the defendant to the protection of the court. The ill-feeling of the plaintiff towards his wife was manifested repeatedly, not by mere “ petulance or rudeness,” but by a series of acts of personal violence and a continual use of insulting language. He thus caused the abandonment of which he complains, and his conduct entitles the defendant to a separation and a reasonable support at his hands. (Barrere v. Barrere, 4 Johns. Ch. 187.) *188 The order appealed from should, therefore, he affirmed, and the defendant have judgment absolute according to the prayer of the answer. All concur. Order affirmed and judgment accordingly.