O'Connor v. . O'Connor

Avery, J. after stating the case, proceeded: It is true, as insisted by counsel in the brief, that a husband who brings his action for divorce from the bonds of matrimony is not required to “purge his conscience” by negativing, in his complaint, the possibility of unfaithfulness on his part. Edwards v. Edwards, Phil., 544; Steel v. Steel, 104 N. C , 631. But when the wife demands only a divorce a mensa et thoro, on the ground that the husband, by personal violence, has made her life intolerable and her condition burdensome, she must state specifically her complaint, what, if anything, was said or done by her just before or at the time her husband struck her, or threatened her, or charged her with incontinency; or she must, in some way, negative, by explicitly setting forth what her conduct was, the idea that any act or word on her part was calculated to arouse sudden passion on the part of the husband, or put him on the defensive. White v. White, 84 N. C., 340; Joyner *143 v. Joyner, 6 Jones, Eq., 322; Jackson v. Jackson, 105 N. C., 433; McQueen v. McQueen, 82 N. C., 471. In the case of White v. White, supra, the complainant alleged that an assault upon her by her husband with a piece of iron about a foot and a half long, and another with a stick about two and a half long, were committed on her person without any provocation ; “ but,” said the Court, “ she was entirely silent as to the antecedent and attending circumstances and the causes which prompted the defendant thus to act. She makes no statement of her own conduct, nor of any facts in explanation of the three violent assaults described in the complaint, separated at long intervals from each other, so that the Court can see whether there was any, and what, excuse or extenuation for such outbursts of temper in an old man, crippled añd verging upon seventy years of age.” In that case the jury found in response to an issue, that the defendant did “ beat, abuse and ill-treat the plaintiff, as alleged in the complaint.” The fact that the jury find, in responding to four separate issues, that four assaults were committed at long intervals, instead of three, does not distinguish the case at bar in principle from White v. White, supra. The language of the amendment (“ without cause or provocation on her part ”) made by the Court, after verdict, is substantially the same as that declared in White v. White, insufficient to give the complainant a status in Court In Joyner v. Joyner, supra, the Court held that, though the wife had been stricken by the husband with a horse-whip and corrected with a switch, it was essential that she must set forth in her petition for divorce from bed and board the circumstances under which the blows were given, what her conduct was, and especially “ what she had done or said to induce such violence ón the part of the husband.” The Judge had the right to allow an amendment of the pleadings so as to make an allegation conform to the proof, where both parties had offered testimony bearing upon the *144 issue raised by such allegation and the defence to it. But as the amendment itself was not sufficiently specific to show that the plaintiff’s action was well grounded, it is not necessary to discuss the form of the.issues. Where the pleadings raise an issue as to the conduct of the wife at the time of the assault, or when she was otherwise mistreated, the husband has the right to demand that the question so raised shall be passed upon by the jury through the medium of some issue submitted. White v. White, supra. It is intimated, rather than suggested, that the assault made in 1878, on account of the wife’s condition, amounted to such cruel and barbarous treatment as to endanger her life, and that, therefore, the plaintiff may rightfully insist that she has brought the case within the meaning of sub-section 8, § 1286. To this we answer, first, that it is not found by the jury that her life was endangered, and the judgment cannot be predicated upon that view in the absence of such a finding; second, that she had lived with her husband for ten years after that assault and before this action was brought. The Court will not allow a separation for an offence so long ago condoned. The publication in the newspaper and the assault on Thanksgiving day were both causes of complaint that arose within six months before the issuing of the summons, which was the commencement of the action. Neither can be considered as grounds for granting the relief prayed for in this action. Jackson v. Jackson, supra. “ The Courts have held parties seeking divorce to strict proof, not only in conformity to a fair construction of the statutes relating to the subject, but in accordance with the dictates of public policy.” We think there was error in the refusal to grant the defendant’s motion; but, as the amendment allowed by the Court is not sufficient to give the plaintiff a status in Court, anew trial will be awarded, and an opportunity extended to plaintiff to make the allegations more specific. Porter v. Railroad, 97 N. C., 66. New trial.