Gordon v. . Gordon

Ashe, J. The petition is filed under sub-division 4, section 5, chapter 37 of Battle’s Revisal, for divorce a mensa et thoro, and for alimony. The application for alimony is made under section 10 of said chapter, and so far as relates to her pecuniary *50 condition, the petitioner has brought herself within the purview of the statute. The question is whether the facts stated in the petition are sufficient to entitle the petitioner to the relief demanded. The petitioner alleges that she left the defendant’s house on the 10th of March, 1578, and remained away uutil the 13th of April, 1879, and was induced to return by the frequent impor-tunities of the defendant and his promises to treat her as a husband should do. But in violation of his promise, he kept a woman some six months in the house in full charge of his domestic affairs, giving her more privileges than were accorded to the petitioner, when he knew the woman was very obnoxious to her; that he abandoned and cursed her accused her of starving his children — caught her around the neck and choked her with great severity, so that the marks of his violence remained upon her neck for a’week or more — charged her of stealing repeatedly — denounced her as a liar to the neighbors, and frequently during their married life reproached her with her poverty. This was certainly very reprehensible conduct in the defendant, and must have been very annoying and humiliating to the petitioner. But whether these facts taken alone are sufficient to 'give the relief demanded in the petition, we are not, under the circumstances of this case, called upon to decide. For even if these facts are not of themselves sufficient, they are of such a character as to revive the transactions occurring before the separation, and obliterate the condonation arising from the return of ' the petitioner to the house of the defendant. We are not aware of any adjudication of this court upon the effect of subsequent cruelty, after condonation, in reviving antecedent transactions; and there is some diversity of opinion among judges and law writers upon the subject. But the decided weight of authority is in favor of the proposition that it operates as a reviver of the original offence. Condonation, says an eminent judge, is strictly a technical *51 word. It had its origin in the ecclesiastical court of England, and means “forgiveness with condition.” The condition is, that the original offence is forgiven, if the delinquent will abstain from the commission of a like offence afterwards, and moreover, treat the forgiving party in all respects with conjugal kindness. Bishop on Divorce, § 53. Condonation extinguishes the right of complaint, except for subsequent acts, and is accompanied with an implied condition that the injury shall not be repeated, and that a repetition of the injury takes away the condonation, and operates as a reviver of former acts. Shelford on Mar. & Div., 446. In D’Aquillar v. D’Aquillar, 1 Haggard Ex., 733, Lord Stowell is reported to have held, “that words of heat and passion, of incivility or reproach, are not alone sufficient for an original cause, nor hardness of behaviour; but I cannot think their operation would be stronger in condonation. Words otherwise of heat receive a different interpretation, if upon former occasions they have been accompanied with acts, if it is apparent that the habit of following up words with blows, and on these grounds I am of opinion much less is sufficient to destroy con-donation than to found an original suit.” In Massachusetts, it has been held that, when the wife had condoned the husband’s cruelty by cohabiting with him after it was inflicted, but the husband, soon after the act of cruelty, continuously for weeks refused to speak to her; though living in the same house, the condoned cruelty was revived. The court said that “such evidence of persistent unkindness and ill-temper warranted the wife or the court in inferring 'that his smothering anger would break out again into acts of cruelty.” Robbins v. Robbins, 100 Mass., 162. In New York, it was held by a majority of the court, in Johnson v. Johnson, 14 Wend., 637, that where the husband’s adultery had been condoned by his wife, the condonation was destroyed by the husband’s subsequent neglect to attend to her *52 comfort, by insulting her with opprobrious epithets and by-pursuing a course of conduct towards her calculated to wound her feelings, although no subsequent adultery or even acts of violence were charged. In South Carolina, in the case of Threewits v. Threewits, 4 Des., 560, cited in Bishop on Marriage and Divorce, which was a case where the husband was addicted to the habit of intemperance and of abusing his wife in his fits of intoxication, and after a separation they became reconciled, it was held that his wife might, in aid of her proofs of subsequent cruelty, show Ids former abuse in connection with its cause, and his subsequent intoxication* After the parties in our case had been separated for the space of thirteen months, the defendant frequently importuned the petitioner to return to his house, which she consented to do, under his promise to treat her as a wife should be treated by her husband. But he violated his promise, by resorting to the same wicked and cruel course of conduct which had caused their separation. This, upon the. authorities above cited, took away the condonation and revived all the acts of cruelty occurring before the separation. The inquiry then is, were they of such a character as to entitle her to the relief demanded. Rarely, if ever, has a case come before the court appealing more strongly to the law for protection. The conduct of the defendant towards his wife, if true, and we must take it to be true for the purposes of the motion, was unmanly, wicked and cruel. He called her a fool find made against her the uufounded charge of theft. While she was lying prostrated by sickness, he cursed her and threatened to whip her as soon as she recovered sufficiently to bear it; and, as if with the premeditated purpose of carrying his threat into execution, he procured a large switch and put it away for the purpose of using it on such occasion as his bad temper might dictate. Upon the slight provocation of correcting one of his children for indecent conduct, the switch *53 was sought, and with it a severe castigation inflicted upon the petitioner by the defendant; at each blow saying, “damn you, take that.” fie struck her at the same time in the face with his fist, leaving bruises upon her face and back, and causing permanent injury to one of her eyes; and when she attempted to escape from his fury, he caught and carried her back and locked her up during the night, and would not permit any one, calling at the house, to see her for two weeks. At another time, being enraged with the petitioner, he seized her by the hair, choked her and struck her several blows; and when being faint from the effects of his violence, she asked for water, he refused to let her have any. After this, he threatened to hang her, and said she ought to be treated like a certain woman who, with her child, had been murdered by her husband. No one who reads this catalogue of indignities and cruelties would hesitate to say, that under such treatment the condition of the petitioner must have been intolerable and her life burdensome. Such is our opinion, upon the assumption that the facts are true; but their truth with the extenuating circumstances is to be tried by a jury. Many affidavits as to the pecuniary condition of the defendant, in his behalf, were sent to this court with the record, under the belief, we suppose, that this court would review the ruling of His Honor in the matter of alimony. But this court has no jurisdiction to change the amount:- it is matter of discretion in the superior court. Webber v. Webber, 79 N. C., 572, and Schonwald v. Schonwald, Phil. Eq., 215. There is no error. Let this be certified. No error. Affirmed.