p. 56KENNEDY, Appellant, v. KENNEDY, Respondent.Headnote
Divorce.—Gruel and inhuman treatment, what constitutes.Where the evidence discloses that the husband on various occasions falsely and maliciously charged his wife with unchastitv and infidelity to her marriage vows, and on other occasions said, “I wish I could murder you,” “ I will keep you here living miserably, and I will make you lead a wretched life yet,”—sufficient ground for a divorce a mensa is presented.
It seems, that false and malicious accusations of adultery, habitually made by the husband against the wife, constitute cruel and inhuman treatment within the meaning of the statute.
Before Speir and Russell, JJ.Decided December 30, 1880.Appeal from a judgment entered upon the decision of a single judge at special term, without a jury.
The action is brought by plaintiff, the wife of the defendant, for a limited divorce on the ground of cruel and inhuman treatment, and of such conduct on the part of the husband towards his wife as rendered it unsafe and improper for her to cohabit with him.
The facts appear in the opinion of the court.
Bevelin & Miller, attorneys, and William A. Beach and John E. Bevelin, of counsel, for appellant, among other things, urged:
I. Under the decision. of the court of appeals, on review of order for alimony ( 73 N. Y. 374 ), the conclusion of law “that the defendant has treated the plaintiff in a cruel and inhuman manner,” is error. This phrase is also loose and uncertain ; but the court of appeals say : “There must be either actual violence committed, with danger to life, limb, or health, or there must be a reasonable apprehension of such
p. 57violence” (Ib.). There is no justifiable pretense, that defendant was guilty of any violence falling within this description. Plaintiff testifies to the entire absence of “actual violence.”, She does not testify to any apprehension of violence. Nor do the circumstances narrated by her justify any inference that she feared it. In the interests of society, as well as the parties, the evidence of such threats should be most satisfactory (2 Bish. Marr. & D. §§ 47, 38, 653, 657, n., 663).II. Decisions under the canon law of England are not quite pertinent, in the construction of our statute. The court of appeals, so far as this case is concerned, have defined and applied it,- and that definition is fully in harmony with preceding law (Bishop M. & D. §§ 715, 717, &c., and note ; Evans v. Evans, 1 Hagg. Con. 35; S. C., 4 Eng. Ecc. 310 ; see cases cited by counsel, 73 N. Y. 371 ; Paisley v. Paisley, Daily Reg. Nov. 29, 1879 ; Ruckman divorce suit, Id. January 6, 1880).Roger A. Pryor, for respondent, among other things, urged :
I. A false and malicious accusation of adultery against the wife is “ cruel and inhuman treatment” in the sense of the statute (Bihin v. Bihin, 17 Abb. 26 ; Whispell v. Whispell, 4 Barb. 219 , 220; Barber v. Barber, 7 West. Law Jour. 279; Durant v. Durant, 1 Hagg. Ecc. 769 ; Jamieson v. Jamieson, MS. opinion Van Vorst, J., S. T. Supreme Ct., Oct. 1877 ; Powell v. Powell, 22 Cal. 358 ; 1 Bish. Marr. & Div. § 717; Butler v. Butler, 1 Parsons Sel. Eq. Cas. 329 ; Bailey v. Bailey, 97 Mass. 373 , 381 ; Cole v. Cole, 23 Iowa, 433 ; Pomelson v. Pomelson, 22 Cal. 358 ). As to what constitutes legal cruelty, see' also: Kirkman v. Kirkman, 1 Hagg. Cons. 409, 410; Mason v. Mason, 1 Edw. Ch, 278 ; Kelly v. Kelly & R., 2 L. R. P. & D. 34, 35, 75, 76 ; D’Aquillar v. D’Aquillar, 1 Hagg. Ecc. 774, note Cloborn’s Case, Hetley, 149 ; Saunders v. Saunders, 1 Rob. Ecc. 563; Popkin v. Popkin,
p. 581 Hagg. Ecc. 768, note ; Bromwell v. Bromwell, 3 Hagg. Ecc. 637; Suggate v. Suggate, 1 S. & T. 491 ; Wellscourt v. Wellscourt, 5 N. of C. 132; Popkin v. Popkin, 1 Hagg. Ecc. 768, note ; Morphet v. Morphet, 1 L. & R. P. & D. 704; Brown v. Brown, Id. 46; Sant v. Sant,. 10 Eng. Rep. (Moak’s ed.) 101; Milner v. Milner, 4 S. & T. 241; Moores v. Moores, 1 C. E. Green (N. J.) Ch. 275 ; Patterson v. Russell, 7 Bell’s App. Cas. 357 ; Harris v. Harris, 2 Consist. Rep. 149; Holden v. Holden, 1 Consist. 458; Saunders v. Saunders, 1 Rob. Ecc. 563; Tompkins v. Tompkins, 1 S. & T. 171 ; Lockwood v. Lockwood, 2 Curteis, 302; Best v. Best, 1 Adams Cons. 435, 436; Kennedy v. Kennedy, 73 N. Y. 369 .Upon a careful examination of the record we see no reason for complaint in regard to the findings of fact by the court below. The only question which it is necessary to examine on this appeal, therefore, is one of law, and which was earnestly discussed by counsel on the argument. The defendant claims that the evidence did not uphold the legal conclusions of the court. In support of this proposition reference is made to the decision of the court of appeals when this case was before it in review of the order for alimony ( 73 N. Y. 374 ), when the issues in the pleadings had not been determined. It. was claimed by the defendant that it did not appear from all the papers and proofs presented, that the plaintiff ought to recover, and that therefore alimony should be denied. The court there held that if the facts stated in the complaint are clearly'not sufficient, if true, to constitute a cause of action, alimony cannot be granted. And it also held that it would not pass upon the merits of conflicting allegations or proofs, upon a motion for alimony; that the granting of such a motion being a matter of discretion it
p. 59would not review the exercise of that discretion by the court below. The only question, therefore, decided by the appellate court was that the court below had the power to allow alimony, and the appeal was dismissed.
The chief justice, in commenting upon the difficulty of defining in precise words what constitutes “cruel and inhuman treatment,” quotes the following, as being both concise and comprehensive : “There must-be either actual violence committed, with danger to life, limb or health, or there must be a reasonable apprehension of such violence ” (1 Bishop Marr. & Div. 717, note 4). The case referred to is no authority, nor could it be, as this case was not before the court. It furnishes us with the definition of ‘c cruel and inhuman treatment,” and so far is useful as an authority.
It seems to us from the expressive words used in the statute that it is not necessary there should be personal violence to constitute cruel and inhuman treatment. It plainly refers in terms to a species of unkind treatment accompanied by threats and words of menace, the inevitable consequence of continued indulgence in which is, that violence may reasonably be apprehended, and result to the wife, unless prevented, in danger to life, limb or health. It is however, of the greatest importance that the cause of apprehension should not only be weighty but such as clearly shows that the duties and obligations of the marriage life cannot be discharged.
The mutual dependence of our mental and physical organization creates a mysterious sympathy, and exists under such conditions, that, when disturbed, it seems impossible to distinguish between them as to cause and effect.
The defendant’s treatment of his wife was cruel and inhuman within the meaning of the statute and such as to render it unsafe for her longer to endure his conduct and continue to cohabit with him. He on vari
p. 60ous occasions wantonly and maliciously charged her with unchastity, and infidelity to her marriage vows. Shortly after the birth of a child he reproached her with a denial that he was the father of the child. On another occasion he said “he wished he could murder her “I will keep you here living miserably, and I will make you live a wretched life yet.” The charges of infidelity, as appears from the evidence, were frequent and continuous, and were urged maliciously, and without probable cause. • He declared to various witnesses “ that he never believed his wife to be guilty of adultery and never suspected her of such guilt.”
The cases are too numerous for citation that false and malicious accusation of adultery against the wife is “cruel and inhuman treatment” within the sense of the statute. The conduct of the defendant, not only in this respect, but his foul and blasphemous language and threats of violence towards her seem to have been habitual. Under all the circumstances of the case we»are of the opinion, as expressed in some of the cases, “that the court. must not wait till the threats are carried into execution, but must interfere when words raise a reasonable apprehension of violence.”
The judgment should be affirmed.
Bussell, J., concurred.