This is an appeal from an interlocutory order of Osborne, J., in the Court of
Equity of NORTHAMPTON, allowing to the petitioner for a divorce alimony
pendente lite.
The petitioner states that she was the widow of one David Futrell, and
intermarried with the defendant in November, 1860; that she had a reasonable
prospect of happiness from the marriage, herself well bred and of a respectable
family, and her husband not less than a fair match for her; that in this she
was greatly disappointed; that her husband manifested great coarseness and
brutality,
"and even inflicted the most severe corporal punishment. This he did on two
different occasions, once with a horse-whip and once with a switch, leaving
several bruises on her person."
"He used towards her abusive and insulting language, accused her of carrying
away articles of property from his premises to her daughter by a former
husband; refused to let said child live with her; has frequently at night,
after she had retired, driven her from bed,
saying that it was not hers, and that she should not sleep upon it. He has also
forbade her sitting down to his table in company with his family," and that
"by such like acts of violence and
indignity has forced her to leave his house, and that she is now residing with
her friends and relatives, having no means of support for herself and an infant
son born within the four past weeks." These facts, the ground of this her complaint, have existed at least six
months prior to the filing of this bill.
"Your petitioner, during the whole time of her intermarriage with the defendant,
saith that she has been a dutiful, faithful and affectionate wife, and desired
so to continue during life, but the outrages upon her person and rights have
made it her desire, as well as duty to seek a perpetual separation from his
bed, his board, and from the bonds of matrimony." The bill prays accordingly and for alimony.
At the term to which the process was returnable the plaintiff's counsel moved
for alimony pendente lite, when the following order was made:
"This cause coming on to be
heard, it is ordered upon hearing of the cause and upon affidavits as to the
estate of the defendant, that the clerk and master give notice to the defendant
to pay into the office of the clerk and master for Northampton County the sum
of $ 350, as alimony, for the subsistence of the said plaintiff and her child
until the next term of the Court, and that the payment of the above sum be
made on or before 15 December, 1861."
From this order the defendant prayed an appeal to the Supreme Court, which was
granted.
HEADNOTES:
There are circumstances under which the striking of his wife with a horsewhip,
or
switch, by a husband, and inflicting
bruises, would not be the ground of a
divorce. Where, therefore, such
violence was made the ground of an application for a
divorce, it was
Held, to be necessary that the bill, or petition, should set forth
particularly and
specially what she did and said immediately prior to and during such use of force.
COUNSEL:
Barnes, for the plaintiff.
W. N. H. Smith, for the defendant.
PEARSON, C. J. The Legislature has deemed it expedient to enlarge the grounds
upon which
divorces may be obtained; but as a check or restraint on applications for
divorces, and to guard against abuses, it is provided that the cause or ground on which
the
divorce is asked for shall be
set forth in the petition
"particularly and
specially." It is settled by the decisions of this Court that this provision of the
statute must be strictly observed, and the cause or causes for which the
divorce is prayed must be set forth so
"particularly and especially" as to enable the Court to see on the face of the petition that if the facts
alleged are true the
divorce ought to be granted:
Everton, v. Everton, 50 N.C. 202. The correctness of this construction is demonstrated by the fact that upon
appeals from an order allowing alimony pending the suit,
like the present, this Court is confined expressly to an examination of the
cause or causes of
divorce, as set out on the face of the petition, and can look at nothing else
in making up the decision; Rev. Code, ch. 40, sec. 15.
By the rules of pleading in actions at the
common law every
allegation of fact must be accompanied by an allegation of
"time and place." This rule was adopted in order to insure proper certainty in pleading, but a
variance in the
allegata and
probata, that is, a failure to prove the precise time and place as alleged in the
pleading, was held not to be
fatal, unless time or place entered into the essence and made a material part of the
fact relied on in the pleading.
There is nothing on the face of this petition to show us that time was
material, or a part of the essence of the alleged cause of
divorce; that is, that the
blows were
inflicted at a time when the wife was in a state of pregnancy, with an intent to cause a
miscarriage, and put her life in danger, and there is nothing to show us that
the place was a part of the
essence of the cause of
divorce, that is, that the
blows were
inflicted in a
public place, with an intent to disgrace
her and make her life insupportable, so we are
inclined to the opinion that it was not absolutely necessary to state the time and
place, or if stated, that a
variance in the proof, in respect to time and place, would not be held
fatal.
But we are of opinion that it was necessary to state the circumstances under
which the
blow with the
horse-whip and the
blows with the
switch were given; for instance, what was the conduct of the petitioner; what had she
done or said to induce such
violence on the part of the husband? We are informed by the petitioner that she was a
woman
"well-bred and of respectable family, and that her husband was not less than a
fair match for her." There is no allegation that he was drunk, nor was there any imputation of
unfaithfulness on either side (which is the most common ingredient of
applications for
divorce), so there was an obvious necessity for some explanation, and the cause of
divorce could not be
set forth
"particularly and
specially," without stating the circumstances which
gave rise to the
alleged grievances.
It is said on the argument that the fact that a husband, on one occasion,
"struck his wife with a
horse-whip, and on another occasion with
a
switch, leaving several
bruises on her person," is,
of itself, a sufficient cause of
divorce, and consequently the circumstances which attended the infliction of these
injuries are immaterial, and need not be set forth. This presents the question
in the case:
The wife must be subject to the husband. Every man must govern his household,
and if by reason of an unruly
temper, or an unbridled tongue, the wife persistently treats her husband with
disrespect, and he submits to it, he not only loses all sense of self-respect,
but loses the respect of the other members of his family, without which he
cannot expect to govern them, and forfeits the respect of his
neighbors. Such have been the incidents of the marriage relation from the beginning of
the human race. Unto the
woman it is said,
"Thy desire shall be to thy husband, and he shall rule over thee," Genesis, ch. 3, v.
16. It follows that the law gives the husband power to use such a degree of
force as is necessary to make the wife behave herself and know her place. Why
is it that by the principles of the
common law if a wife slanders or assaults and beats a
neighbor the husband is made to pay for it? Or if the wife
commits a criminal offense, less than felony, in the presence of her husband,
she is not held responsible? Why is it that the wife cannot make a will
disposing of her land? and cannot sell her land without a privy examination,
"separate and apart from her husband," in order to see that she did so voluntarily, and without compulsion on the
part of her husband? It is for the reason that the law gives this power to the
husband over the person of the wife, and has adopted proper safeguards to
prevent an abuse of it.
We will not pursue the discussion further. It is not an agreeable subject, and
we are not
inclined, unnecessarily, to draw upon ourselves the charge of a
want of proper respect for the weaker sex. It is sufficient for our purpose to
state that there may be circumstances which will mitigate, excuse and so far
justify the husband in striking the wife
"with a
horse-whip on one occasion and with a
switch on another, leaving several
bruises on the person," so as not to give her a right to abandon him and claim to be divorced. For
instance, suppose
a husband comes home and his wife abuses him in the strongest terms--calls him
a scoundrel, and repeatedly expresses a wish
that he was dead and in torment§ and being thus provoked in the
furor brevis, he strikes her with the
horse-whip, which he happens to have in his hands, but is afterwards willing to apologize,
and expresses regret for having
struck her: or suppose a man and his wife get into a discussion and have a difference
of opinion as to a matter of fact, she becomes furious and gives way to her
temper, so far as to
tell him he
lies, and upon being admonished not to
repeat the word, nevertheless does so, and the husband taking up a
switch, tells her if she
repeat it again he will strike her, and after this
notice she again
repeats the insulting words, and he thereupon strikes her several
blows; these are cases in which, in our opinion, the
circumstances attending the act, and giving rise to it, so far justify the conduct of the husband as
to take from the wife any ground of
divorce for that cause, and authorize the Court to dismiss her petition with the
admonition,
"if you will amend your manners, you may expect better treatment"; see Shelford on
Divorce. So that there are circumstances under which a husband may strike his wife with
a
horse-whip, or may strike her several times with a
switch, so hard as to leave marks on her person, and these acts do not furnish
sufficient ground for a
divorce. It follows that when such acts are alleged as the causes for a
divorce, it is necessary
in order to comply with the provisions of the statute, to state the
circumstances attending the acts and which
gave rise to them.
It was suggested that the averment at the conclusion of the petition, which is
made after the averment,
"that the facts which are made the ground of this complaint have existed at
least six months prior to the filing of this bill";
"your petitioner during the whole time of her intermarriage with defendant,
saith that she has been a
dutiful,
faithful and
affectionate wife, and desired so to continue during life, but the
outrages upon her person and rights have made it her desire as well as duty to
seek a perpetual separation from him," is sufficient to apply the defect in not setting out
"particularly and specifically" the circumstances under which the
blows were
inflicted on her person.
We do not think a general averment of this kind, unconnected as it is with the
allegations of fact, can be allowed to have the effect of the
particular and special
statement, which the statute requires. It is not traversable, and we cannot
say, as a conclusion of law, what may, in her opinion, be such
conduct as is consistent with the character of a
dutiful,
faithful and
affectionate wife. It is unnecessary to
notice the other matters of complaint set out in the petition, because they are
admitted not to be, of themselves, sufficient, and are put in as
makeweights or
props of the main causes, which we have fully adverted to.
Nor is it necessary to
notice the objections, because of the fact that the bill had not been exhibited to a
Judge and his fiat for process obtained.
There is error; the decretal order will be
PER CURIAM.
Reversed.