
    Frau v. Canals.
    Appeal from the District Court of Arecibo.
    No. 70.
    Decided November 19, 1903.
    Divobce — Ceuelty op a Physical Chabacteb. — The words “cruelty of a physical character” {maltrato de obra) mentioned as a cause for divorce in General Order of March 17, 1899, means not only the repetition of outward acts of violence by one spouse against the other, but also any conduct on the part of one of them toward the other, which renders the cohabitation physically impossible, except at the risk of the persecuted spouse’s life.
    Id. — Cruel and treacherous conduct on the part of one spouse toward the other is sufficient cause for the granting of a decree of divorce, based on “cruelty of a physical character”.
    Divobce — Alimony—The alimony assigned by the court to the wife, upon the institution of a divorce suit, is a temporary measure which must cease as soon as the ease is determined by a final judgment.
    Divobce — Sepabation oe Pbopebty. — -The consequence of a judgment granting a divorce is the definite separation of the property belonging to the conjugal partnership, the husband forfeiting the administration of the property exclusively belonging to his wife.
    
      Costs. — -Costs shall be imposed upon, that litigant who loses his case on all points.
    STATEMENT OE THE CASE.
    This is an appeal in cassation for error of law, now appeal, pending before us, taken by Pedro A. Canals, who entered an appearance in this Supreme Court through his counsel, Antonio Alvarez Nava, praying for the reversal and annulment of a judgment rendered by the District Court of Are-cibo, which literally reads as follows:
    “In Arecibo, January 31, 1902.- — The public hearing has been had in this action for divorce prosecuted in this District Court by Emilia Frau Vázquez, married, of legal age, without any profession, a resident of Lares, represented by Attorney Lipidio de los Santos Laguardia, against Pedro Antonio Canals, married, of legal age, property owner and likewise a resident of LaTes, represented by Attorney Sijnón Largé, and against the Department of Public Prosecution.
    “On June 26, 1899, Pedro Antonio Canals and Emilia Frau y Vázquez, both natives of Spain, contracted a canonical marriage in the town of Lares, where they established their residence. Three days after the marriage, the wife, who was only nineteen years of age, noticed that she was suffering from a vaginal flow, in the nature of a blennorrhea or gleet, which later extended to the uterus. The sexual relations between husband and wife were not discontinued, and in March of the following year, the wife had a miscarriage being delivered of a six-month fetus. Three months after she moved to the home of her mother, Ruperta Vázquez, with her husband’s reluctant consent; and during four months she was assigned by the latter a small allowance for medical treatment, but a cure was not effected.
    “On February 21, 1901, Emilia Frau, who continued to live at her mother’s house, filed through her counsel, in the District Court of Arecibo, an action for divorce against her husband, Pedro Antonio Canals, alleging the facts above set forth, and stating further: that about seven and a half months since, through the intervention of several persons, she had moved to her mother’s house, where she resided because it was necessary that she should live apart from her said husband; that on July 2, 1900, Canals sent his wife twenty-five dollars wherewith to attend to her most urgent necessities during the month, although at the time she was going through the most serious period of her illness; that on July 2, 1900, Canals sent his sick wife twenty dollars in each of aforesaid months, (sic) and demanded a receipt from her ; that from October to the date on which the case was placed in the hands of her attorney, he has supplied her with no more money; that since November 25, the supplying of medicines for her has been stopped, and she has had medical assistance only in cases that did not call for the services of a first-class specialist, which, according to the physicians attending her, should be summoned, in view of the nature of her illness.
    “As legal grounds of action, Emilia Frau y Vázquez cited General Order of March 17, 1899, confirmed by the Foraker Act, according to which, cruelty by one of the spouses toward the other, when the same is of a physical character, is sufficient cause for divorce, and -prayed that the marriage bonds between her and Pedro A. Canals be declared dissolved, both spouses remaining absolutely free, and that the wife’s right to recover from her husband such damages as she might have suffered be reserved to her. The complaint was accompanied by the following documents: a letter from P. Virella to Ruperta Vázquez, concerning an interview had with Canals, in regard to her daughter Emilia; another letter to the same person from Salvador Picornell upon the same subject; a certificate from Dr. Sein concerning medical attendance to Emilia Frau; marriage certificate of Emilia’s parents; marriage certificate of Pedro A. Canals to the aforesaid Emilia Frau; certificate of taxes assessed upon the property of Canal during fiscal year 1900-1901; another certificate of Dr. Sein concerning medical assistance to Emilia Frau and the authority given Santos to represent Emilia Frau in her suit against Canals.
    “The complaint was admitted, and pursuant to the cautionary measures prescribed by General Order of March 17, 1899, the court appointed the plaintiff’s mother as her temporary guardian, assigned the monthly allowance of fifty dollars to the wife as alimony to be levied upon the property belonging to Canals, should he fail to make immediate payment thereof, and ordered that a notice of the suit be entered in the Registry of Property, and twenty days notice of the same be served upon defendant and the prosecuting attorney.
    “Simón Largó, Esq., representing Pedro A. Canals, answered the complaint, and demurred on the ground that the court had no jurisdiction (of the parties) in view of the fact that they were foreigners as shown by the documents which he submitted. After the hearing on the demurrer the District Court made an order maintaining its j urisdietion to hear and determine the action for divorce and ordering that it be proceeded with according to rule 62 of General Order No. 118, series of 1899.
    “Upon the appearance of the parties for the purpose of proposing their evidence, the plaintiff, Emilia Frau, proposed that of a confession in court by defendant in reply to interrogatories which would be presented at the hearing, which was declared pertinent -by the court; the reading at the same proceeding of the certificates of baptism and of the record of proceedings to avoid litigation which were attached to the complaint; the reading of a copy of the document and complaint in intervention instituted against Pedro A. Canals by Dr. Sein, of Lares, who had levied an attachment on Canals’ furniture in proceedings for -the recovery of his fees for medical attendance to his wife, Mrs. Frau; the reading of private documents relating to the intervention of residents of the town of Lares in the matter in issue; receipts for three hundred dollars of Dr. Sein’s fees, paid by Mr. Canals, for medical attendance upon Mrs. Frau; the reading also of the private documents exhibited by Drs. Blanes, Asenjo and Sein, with reference to the treatment of the sick wife; a letter from plaintiff’s mother, Ruperta Vázquez, written in pencil, in regard to her daughter’s disease ; that the medical experts Manuel Martinez Rosselló, Guillermo Curbelo and Tulio López Gaztambide, be also required to testify at the trial in reply to such questions as might be put to them, and that the witnesses named in the list presented be summoned to testify; and by way of supplementary evidence, she offered that of comparison of handwriting to be made by the expert witness, Professor Rafael Janer.
    “Pedro A. Canals proposed as evidence a confession in court by Emilia Frau ; documentary evidence consisting of the reading at the hearing of the certificates of Dr. J. E. Saldaña, of San Juan, and Dr. Francisco Blanes, of Lares, and that of the American physician, Mr. Cuttiff; comparison of handwriting by way of corroborative evidence of documents not acknowledged by the signers thereof, and the testimony of witnesses, all of which was declared pertinent by the court, and a day was set for the appearance of the parties provided for by law in order that they might come to an agreement as to the appointment of experts; and the same having taken place with the attendance of the counsel for both parties, the plaintiff appointed Dr. Martinez Rosselló, of Arecibo, and the defendant Dr. Francisco Blanes, of Lares, while Dr. López Gaztambide, of Arecibo, was selected as a third expert, all of them being physicians.
    “At the oral hearing, counsel for both parties being present, the evidence proposed by plaintiff was introduced, Pedro A. Canals testifying, in reply to interrogatories propounded, that when his wife, Emilia Frau, fell ill she insisted upon going to the house of her mother, Ruperta Vázquez, with whom Canals had quarreled, and finally did so against his wishes, he having assured her that at their home she wrould lack nothing. He denied having given orders at the apothecary’s not to supply medicine for her, or that he had not allowed her to be visited by a specialist. Ruperta Vázquez, Emilia Frau’s mother, testified to the effect that while her daughter was suffering from the contagious disease contracted from her husband shortly after their marriage, she went to her mother’s house for the purpose of being properly attended, and that Canals had given orders that no medicine should be supplied her (by the apothecary). Dr. Sein, of Lares, who had attended Emilia Frau testified that three days after the latter’s marriage, she began to suffer from a blennorrhea, for which he had treated her for some time, and that Canals, her husband, had paid him various sums of money as his fees for such attendance. The witnesses Bernardino Vázquez, plaintiff’s uncle, and Vicente Aquilúe, testified, among other things, that Emilia Frau had gone to her mother’s house because she understood that there she would have better care during her illness.
    “Coming to the evidence proposed by defendant, Emilia Frau, in reply to interrogatories propounded, testified that three days after her marriage she had noticed in her genital organs a flow the nature whereof was unknown to her, the same being accompanied by a great irritation, which increased to such an extent that she had to call her husband’s attention, to it, he informing her that it was of no consequence; but as her illness continued to grow worse, she consulted her mother and Dr. Sein, who began to prescribe for her ; that her husband would not discontinue their sexual relations and she had an abortion after six months; that at the apothecary’s she was refused medicines, and as she was not properly nursed, she- had been obliged to go to her mother’s, where Dr. Sein continued to treat her; that she had also been seen by other physicians, and that she continued ill at the house of her mother to whose guardianship she had been assigned by the District Court; that the disease had invaded the interior of her genital organs and she felt very ill. Maria Frau, plaintiff’s sister, testified to the same effect. Dr. Valeriano Asenjo, who had been called in consultation on the occasion of María (sic) Frau’s miscarriage, and as a local physician had been visiting the house of the Canals for about a year, had failed to notice anything irregular. The witnesses Felicita Ramos and José Más Fajas, testified to the effect that Emilia Frau’s illness- was a positive fact, as also did Miguel Coll y Rullán. The medical experts Drs. Martinez Rosselló, Francisco Blanes and López Gaztambide submitted tlieir report, Dr. Rosselló being of opinion that Maria (sic.) Frau was suffering from blennorrhea by direct contagion, which blennorrhea, owing to the time it had existed in the genital organs of the patient, had extended to the womb and injured the adjoining organs; that this disease, if not attended to according to the prescriptions of science, may bring about very serious complications, especially in women, and sometimes be the cause of death. Dr. Blanes dissented from the opinion of Dr. Martinez Rosselló as to the nature of the disease Emilia Frau was suffering from, while Dr. López Gaztambide, referee appointed by both parties, stated that in view of the disagreement between Drs. Martinez Rosselló and Blanes, he refrained from expressing an opinion inasmuch as he could not base it upon any scientific data; whereupon counsel for Pedro A. Canals requested that Dr. López Gaztambide be instructed to make a scientific examination of Mrs. Frau’s vaginal flow and report thereon, which request was acquiesced in by the court. At a subsequent session said referee presented his report, under protest of the attorney wbo had requested the examination, which protest was entered upon the record by order of the court.
    “Dr. López Gaztambide, in a luminous report presented by him in writing to the court, and which was attached to the record of the case, stated that it was an opinion admitted by a great number of pathologists that the presence of the microbe gonococcus is the symptom of the existence of blennorrhea, although he would not venture to affirm that said microbe was the product of the disease; that the microbe gonococcus was to be found in the genital organs of Mrs. Frau, and he agreed with his colleage Martinez Rosselló, that blennorrhea or gonorrhea is a disease which, if neglected in a woman, may produce fatal consequences, such as the death of the patient.”
    “After examining and considering all the evidence introduced, the court, all the legal formalities having been observed in the conduct of this case, unanimously rendered the following opinion prepared by Presiding Judge Felipe Cuchí y Arnau.
    “The words maltrato de olra, mentioned as a cause for divorce in the General Order of the American Military Government, of March 17, 1899, being the equivalent of sevitia of the ecclesiastical texts, and of cruelty, of the English, should be construed to mean,’ not only the repetition of outward acts of violence by one spouse against the other, but also any conduct on the part of one of them toward the other, which renders the cohabitation of both under the same roof physically impossible, except at the risk of the persecuted spouse’s life.
    “Inasmuch as Emilia Frau y Vázquez was perfectly healthy and sound at the time of her marriage to Pedro Antonio Canals, it is not to be presumed that any one except her husband could have infected her with a venereal disease, especially when said disorder made its appearance in her sexual organs three days after her marriage, during which time she came in contact with nothing that could have been the indirect cause of aforesaid venereal disease.
    “It has been proven that from the time of the discovery by the plaintiff of •the venereal disease to the date when she went to live with her mother, nearly eight months prior to the institution of this divorce suit against her husband, the disease continued to become more and more serious* but this did not interfere with the sexual relations of the couple, which continued uninterrupted, owing to the husband’s insistance. so much so, that the plaintiff was obliged to seek refuge at her mother’s house.
    
      “The report of the medical experts shows that the plaintiff’s illness is of such a nature, that, if neglected, it might cause the death of the patient, which consideration is of itself sufficient to render impossible the cohabitation of the spouses under the same roof, especially when it appears from the record that the sick wife had to abandon her husband’s house, because he refused to afford her the assistance necessary for her cure.
    “A neglected gonorrhea or blennorrhea, when the patient is a woman, may be the cause of her death, according to the opinion of the medical experts, and Pedro Antonio Canals, having been so negligent of his wife’s illness, that the apothecary shops of the town had orders not to dispatch the medicines necessary to cure the disease she had contracted from him, is really guilty of cruelty of a physical character toward his wife, which cruelty does not consist only in committing outward acts of violence against her, but also in performing any other malicious acts which place the offended spouse in imminent danger of losing his or her life.
    “The divorce for cruelty of a physical character, referred to in General Order of March 16, 1899, is based upon a principle both of humanity and of law, because it tends to afford relief to the helpless situation of a spouse who is in constant danger by reason of the other’s cruel treatment; and it has been fully established that Pedro A. Canal’s conduct toward, the plaintiff was cruel and treacherous, not only because the object of it was a woman, but because that woman was sick.
    “Even presuming that the husband did not know the nature of the disease he was suffering from when cohabiting with his wife, his conduct after the disease had been communicated to his wife, in neglecting to provide the assistance called for by her condition, and his insistance upon continuing to have carnal intercourse with his wife, showed that he willfully made her a victim of his cruelty and assumed the serious responsibility of a fatal termination.
    “The order of this District Court upon admitting;Emilia Frau’s complaint, that she be assigned fifty dollars per month as alimony'during the pendency of the divorce suit instituted by her against her husband, Pedro Antonio Canals, to be levied on the latter’s property, was a temporary measure, in accordance with the provisions of paragraph 21 of General Order of March 17, 1899, and must therefore cease as soon,las this case is determined by a final judgment.
    “The consequence of a judgment granting a divorce is the definite separation of the spouses and of the property belonging to the conjugal partnership, the guilty husband forfeiting the administration of the property exclusively belonging to his wife, if there be any, should it be claimed by her.
    “The costs shall be paid by the litigant who loses his case on all’points.
    “In view of General Orders of March 17 and August 15, 1899, and of the Organic Act of Porto Rico, approved by the Congress of the United States on April 12, 1900, and article 371 of the Law of Civil Procedure, we adjudge that we should sustain and do sustain the complaint filed in the divorce suit instituted by Emilia Frau y Vázquez against her husband, Pedro Antonio Canals, and accordingly we declare that the marriage bonds of the spouses are hereby dissolved, plaintiff being reserved her right of action to recover damages from defendant!; said spouses are ordered to remain definitely separated, as also the property appertaining to the conj ugal partnership, for which purpose, a liquidation thereof shall be proceeded with, according to articles 1418 et seq. of the Civil Code, with reference to the dissolution of marriages. Pedro A. Canals is relieved from the obligation of paying fifty dollars monthly, as alimony to his wife; the title and adjudging portion of this decision are ordered to be entered in' the Civil. Registry of the municipality of Lares, and all the costs of these proceedings are taxed against the defendant, Pedro A. Canals.
    “Thus by this our judgment, we pronounce, command and sign. — Felipe Cuchí. — -Otto Schoenrich. — Enrique González.
    “Publication: The above judgment was read and published in open court by the Presiding Judge, charged,with preparing the opinion of the court, tins 31st day of January, 1902. Certified to by me: Manuel de J. Calderon. — The above judgment is a true and faithful copy of the original to which I refer and certify. And for the purpose of attaching the same to the record of the case this copy are issued by me in Arecibo, February 1, 1902. Correct. — Felipe Cuchí. — Manuel J. Calderón, Substitute Clerk”.
    Notice of this judgment having been served upon said Pedro A. Canals, he took therefrom an appeal in cassation for error of procedure and for error of law, which was allowed. And after citing the parties, the record was forwarded to this Supreme Court, where they appeared in due time, and the court, on February 12 of the present year, dismissed the appeal in cassation for error of procedure.
    After this Supreme Court was transformed from a court of cassation into a court of appeals, the proceedings required under the new law of March 12 of the present year were had.
    A day was set for the hearing, which took place this day, the attorneys of both parties being present, as also the Fiscal of this court, who made such arguments as they deemed proper in support of the contentions of the appellant and the respondent and of the State.
    
      Mr. Alvarez Nava, for appellant.
    
      Messrs. Diaz and Texidor, for respondent.
    
      Mr. del Toro, Fiscal of the Supreme Court.
   Mr. Justice MacLeary,

after making the above statement of facts, delivered the opinion of the court as follows:

The findings of fact and conclusions of law of the judgment appealed from are accepted, and in view of the legal provisions cited therein, we adjudge that we should affirm and do affirm the judgment rendered on January 31, 1902, by the District Court of Arecibo, with costs against the appellant. The record is ordered to be returned to said court with the proper certificate.

Chief Justice Quinones, and Justices Hernández and Sulzbacher, concurred.

Mr. Justice Figueras did not sit at the hearing of this case.  