Davies v. Davies

E. Darwin Smith, J. It is perfectly evident, I think, from the proofs in this action, that the parties cannot live peaceably together and perform their proper conjugal duties towards each .other. The spirit and temper of both of them forbid it. The defendant had confessedly lost all attachment and respect for his wife, and clearly desired to be rid of her, before she left him. As they must, therefore, live apart hereafter, the question presented to the court is, whether such separation can and ought to be legalized, so as to permit them to live thus apart, without further strife and in apparent decency and quiet. It is the duty of the wife to live with her husband and put up with his illnature and petulance, and bear with his infirmities, if she can do so with safety to her person and without great personal apprehension and discomfort. Husband and wife should not be lightly separated, or without good cause. \ Under our statute, a limited divorce, or separation from bed and board, may be granted to a married woman for cruel and inhuman treatment by the husband, and also for such conduct on the part of the husband towards his wife as may render it unsafe and improper for her to cohabit with him. (2 R. S. chap. 8, part 2, art. 4, p. 186.) I think there can be no doubt that the defendant’s treatment of his wife on the 23d day of July, 1866, as they both describe the scene and transaction, was such cruel and inhuman treatment as would warrant a divorce, according to all the cases. (See Burr v. Burr, 10 Paige, 20; Whispell v. Whispell, 4 Barb. 220; 17 Abb. 21.) But the plaintiff continued to cohabit with the defendant, after-wards, until about the last of October, 1867, when she left his house—a period of about fifteen months. This con134 tinned cohabitation for so long a period after the ill treatment of July, 1866, implies a forgiveness of such treatment, and a purpose to retain here conjugal relations with the defendant, and to trust to his good treatment for the future. After such a lapse of time and such forgiveness, the court would not grant a divorce for such ill treatment, if, in the interval, the defendant had treated his wife kindly and given her no further cause of complaint. The wife must, under such circumstances, be deemed to have elected to abide with her husband and trust to his assurances of amendment and future good treatment. But if she has occasion to complain of his treatment after-wards, she is not debarred the right to refer to such ill treatment, and bring the same forward as a part of her ground for the belief that she cannot safely continue to cohabit with him. Her case rests upon a review, under such circumstances, of all his conduct towards her during their married life, and not upon any single act. The question, at all times, in this class of cases, is, had the plaintiff reasonable ground of apprehension, in regard to her personal safety, at the time she left her husband ? Had she any ground to believe that she was exposed to any physical injury by a continuance of her cohabitation with her husband ? (1 Bishop on Mar. & Biv. §§ 715, 716, 717.) There must be in all cases ill treatment and personal injury, or a reasonable apprehension of personal injury. (Whispell v. Whispell, 4 Barb. 219.) Words of menace, accompanied by a probability of bodily violence, will be sufficient. (Id.) The testimony of the wife, in this case, if believed, I think fully establishes the fact that the plaintiff was more or less exposed to personal violence during her cohabitation with the defendant from the time of her recovery, after the injury inflicted upon her by the defendant, in July, 1866, until she finally left him. She testified that he made frequent threats of personal violence. He threat [135] ened, at one time, to pitch her out of the sleigh, if she got in, and give her a horse-whipping. On Sunday evening, before she left him, she says, “ he raised his boot, and said ‘ if I did not go out of the room pretty lively, he would knock it over my head.’ ” On the same morning, at breakfast, after some conversation about the “young woman,” Helen, who seems to have been the chief cause of the jealousy, suspicion and trouble between these parties, she says: “he jumped up, and took the coffee-pot, and commenced shaking that in my face.” She also testifies that, on this occasion, he also said “ he didn’t want to have anything more to do with me.” He also said “ if it was not Sunday morning, he would throw me out of doors.” These instances of assault and menaces, and threats of personal violence, tend to prove that he was capable of using such violence upon her person, and gave, I think, ground of reasonable apprehension, on her part, that she might suffer personal injury if she continued to cohabit with him. It is true the defendant denies much of this testimony, but I am inclined to think that I should rather believe the plaintiff than the defendant, when their testimony comes in conflict, and for the reason that her statement is affirmative, and his simply denial, and also that he admits much that tends to corroborate her statements. He admits the personal violence used in July, 1866, and the use of frequent harsh language towards her, and the threat to throw her out of the sleigh. I also prefer crediting the wife’s statement, for the reason that the testimony, upon the whole, shows that the husband possessed a violent temper, and had clearly lost all affection for his wife, and wished to be rid of her, and was just in that frame of mind, when she left him, to do what she says he threatened to do. This view is strongly confirmed by the letter [136] produced, which he wrote soon after she left him, and when his passions were not excited by any immediate provocation on her part. In that letter to her brother, he writes that he proposes to commence a suit in the courts, for a divorce; and says, also: “ I have made up my mind the foolish, simple, but black-hearted woman will never live with me again.” This letter is dated November 11, 1867, and must have been written ten days or two weeks, probably, after the plaintiff left the defendant’s house. It is quite apparent that the plaintiff did not behave well herself—that her language and conduct were in many particulars unbecoming and provoking. Perhaps, however, it was about such language as might be expected from a woman in her situation and grade of life, and of her state of refinement, rendered jealous, and aggravated by the defendant’s treatment of her in keeping another and a handsomer woman in the family, under the circumstances detailed in the evidence, and a woman, too, whom he seemed to admire and treat with more kindness and attention than his wife. Many of the plaintiff’s fears and suspicions were undoubtedly groundless, but they were probably honestly entertained, and were caused by him, and were rather fostered than allayed by his conduct towards Miss Button, in the presence of his wife. Upon the whole case, and a review of his whole conduct towards the plaintiff during the period of their entire cohabitation as husband and wife, I think I must find that his treatment of her was cruel and inhuman; that she had, when she left him, reasonable ground of apprehension of personal injury in case she continued to cohabit with him; and that her conduct towards him was not sufficiently culpable to debar her of her right to a divorce from bed and board, and a suitable provision for her support. I must therefore so decree, and direct a reference to some [137] member of'the bar, to ascertain what would be, under the circumstances, a suitable provision to be made by the defendant for her support and alimony. [Livingston Special Teem, April 26, 1869. E. D. Smith, Justice.]