
    Caamaño v. Cancel.
    Appeal in cassation from the District Court of Arecibo.
    No. 55.
    Decided February 2, 1903.
    Appeal in Cassation. — Rule 79 of General Orders No. 118 in prescribing that appeals, in cassation for violation of law shall also lie for error in the consideration of evidence has not repealed Article 1690', paragraph 7, and 1718 of the Law of Civil Procedure, requiring that such error if of fact, shall be apparent from documents or authentic acts showing the evident error of the judge, and if of law, that the law or legal doctrine alleged to have been violated shall be precisely and clearly cited, as well as the the manner in which the violation occurred.
    STATEMENT OE THE CASE.
    On February 8, 1901, Isabel Caamaño Colón filed a complaint in the District Court of Arecibo, alleging therein the following facts: That on the 16th of March, 1893, she was married in the Parish of San Miguel de Utuado to Francisco Cancel; that shortly after they established their residence in the Town of Arecibo, and one night about a month and a half later, they having retired, her husband who was fond of gambling, arose and called her to shut the hall door after him as he was going to the club. But as she did not respond as quickly as he wished, he became furious and threatened to strike her with an umbrella he had in his hand, and abused her in a scurrilous manner. That seven months after the wedding they returned to Utuado, and plaintiff’s father being seriously ill, Cancel her husband, who harbored a hatred against him because four years before the marriage he had opposed his courtship of her and refused him her hand, forbade her to visit and take care of her dying father, finally consenting after many tears and supplications, to her seeing her father only on one or two occasions during the four months that his illness lasted. That the principal reason for her father’s opposition to her marriage with Cancel was not only the latter’s violent temper but also the fact that he had several children by different mistresses, and he feared that, being accustomed to ill treat these women, he might treat his wife in the same manner and compel her to take care of his illegitimate children, as in fact he did ten months after the marriage, for while she was sick with a terrible desease contracted from him, and which probably caused the death of her unborn child, he first brought to the house two of his illegitimate children and later another one to whom plaintiff had to attend and care for against her wishes, through the tyrannical imposition of her husband. That to the latter’s violent temper was added a persistent and unfounded jealousy which reduced her to the condition of a slave, and prevented her from showing herself on the balcony, or to go walking or visit her relatives and enjoy that social intercourse which is the prerogative of civilized persons. If any gentleman came'3 to the house, either brought by Cancel himself, or inquiring for him, she could not salute him, nor speak to him nor even look at him, for fear of bad treatment for a whole month and a succession of indescribable scenes in the house on account of his jealousy. That more than a hundred times during the eight years of their married life, when Cancel came home at night, he would vent his bad humor in vile language in the bed chamber, not allowing her to get a minute’s rest, and if she was overcome by sleep, he would pull aAvay thp bed-covers and shake her violently in the bed and abuse her. On two of these occasions he took her to the cemetery of Utuado where, under threat of death, he tried to get her to confess to acts which existed only in his wild imagination. That on the 4th of January of the year 1901, Cancel escorted her to the house of a relative, and because when he came back for her, he found there a gentleman who was on a visit, he became so furious that she had to call her father, who with great difficulty succeeded in calming him and bring about a reconcilliation. That on the following day, while she was suffering from a severe headache and felt disgusted with this life of outrages, Cancel approached her with demostrations of affection, and as she repelled his caresses with dignity, and begged him to leave her in peace with her sufferings, he began to heap insults upon her. He broke the furniture like a demented person, and threatening to kill her, ran after. her as, in her fright, she fled to the balcony, crying for help. Overtaking her, he lifted her bodily and dashed her violently against the floor, and as he stepped back to seize a sharp piece of the shattered mirror with the evident intention of attacking her, she again ran through the balcony crying for help, and finally succeeded in reaching the stairs and the street where a crowd had gathered which held Cancel back after she had received from him several blows and kicks; for which reason she had to take refuge in the house of one of her relatives whence she afterward moved to that of her father. In support of her demand she invoked articles 42, 60 and 75 of the Civil Code, rules 18 and 19 of General Orders of March 17, 1899, and Section 8 of the Foraker Act, and concluded with a prayer that judgment be rendered rescinding and dissolving absolutely, by a decree of divorce, as to all binding civil effects, the matrimonial compact existing between plaintiff and the defendant Cancel, without prejudice to the reputation and religious duties of either spouse, and expressly leaving plaintiff at liberty to contract another civil marriage with whomsoever she may choose, costs to be imposed upon defendant should he contest the suit. The complaint was accompanied by a certified copy off the marriage contract attesting that same had been entered into by and between Francisco Cancel and Isabel Caamaño on the 16th of March, 1893, in the Parish church of San Miguel de Utuado, and a certificate of the act of concilliation attempted without success by the latter with the former. The suit was contested by Cancel who alleged the following facts: That on the 16th of March 1893 he had married Isabel Caamaño, and as she was very delicate in health and needed the fresh sea-breezes, he immediately removed her to Are-cibo where she was installed in a house and surrounded by every comfort and provided with medical attendance; that after a stay of eight months in Arecibo, she returned to Utuado, where they occupied the upper floor of a house of their own that had been built expressly for the purpose, she living there at her ease and having all her needs supplied; that he had always allowed her full liberty to visit and go out for walks which she did almost every evening, either alone or accompanied by some female friend or relative, while he solicitously worked night and day so that she might lack nothing; that such was his solicitude, that he had recently engaged a teacher for her in order that she might extend her accomplishments and learn the English language; that he had warned his wife, not to be on -too friendly terms with the gentleman alluded to in the suit, nor to promenade too often with him, for as he did not doubt her, he did not wish the people ever to have, any cause to censure her, a warning which was disregarded by Isabel, so that he was compelled to tell her that he did not want to see her in the street accompanied by that gentleman, and that when she went out she should be escorted by her husband, her father or her brother; this had caused some coolness and unpleasantness between the couple who, however, continued to live together until “Three Kings’ Day”, 1901 when owing to a great nervous excitement under which Cancel was suffering, Isabel left their home and never again returned, notwithstanding his demands that she should return; that from the time of his marriage he had constantly protected and considered his wife’s family, some members of which always accompanied his wife, while all of them were in the habit of partaking of his board and hospitality; that while a bachelor he had had three illegitimate children, the youngest of whom had been taken into the home by his wife, as was afterward one of his daughters, without his having given his assent; and that all the story about jealousy, quarrels, ill-treatment and harshness, recited in the complaint, is pure imagination and only serves to show the art employed in ornamenting a petition which has no ground to stand upon. He pleaded the exception of want of a cause of action on the part of plaintiff and prayed that the complaint be dismissed with costs against plaintiff. In the evidence introduced by both parties at the trial, there was a set of interrogatories offered by plaintiff to be propounded to defendant, who in reply thereto admitted that on the evening of the 4th of January, 1901, he had escorted his wife to the house of a respectable relative, and when he returned for her, he had met there a gentleman visiting, which greatly annoyed him, as he had warned his wife not to have any intercourse with gentlemen not members of the family, considering that such friendships were dangerous to innocent and virtuous young women; that as a result of this disobedience they had a quarrel that night which ended through the intervention of Don Pablo Caamaño, who had been called by his daughter Doña Isabel; that it is true that he has three illegitimate children in his house who are cared for by his wife; that he hád no cause whatever for complaint in regard to the conduct of Isabel who seldom went out of the house, or even showed herself frequently on the balcony; and that the medicines put up at Martinez’s pharmacy, as it appears from an examination of the entires in the ledger between May and November, 1894, were for both spouses; it .being noticeable that no •expert testimon}7 was taken to ascertain for what disease or •diseases these medicines were used. After the hearing was had, the District Court of Arecibo on August 22, 1901, dismissed the suit for divorce brought by Isabel Caamaño .against her husband Francisco Cancel, without special imposition of costs, and ordered the discontinuance of the custody •of the latter who was to be restored to the home of the former and the cautionary notice of the complaint, entered ..at the Registrar’s with respect to Cancel’s property to be •canceled. From this judgment Isabel Caamaño Colón took an appeal in cassation for error of procedure, which appeal was dismissed, and also took an appeal for violation of law, based on articles 1687,. paragraph 1, 1689,. paragraph 1, and 1690, paragraph 1 of the Code of Criminal Procedure, and sections 78 and 79 of General Orders No. 118, series of 1899, alleging the following grounds, to wit:
    First. — Violation of section 19, paragraph 3, of General Order of March 17, 1899, taken in connection with section 8 of the Foraker Act, inasmuch ■as, it being recognized by the lower Court that a canonical marriage may be dissolved, as to its civil binding effects, among other causes, for the one •alleged in the case at bar, which is the third one of aforesaid section 19, it .should have entered the decree of divorce prayed for, as a result of the •evidence of Cancel’s cruelty toward the apellant. Second. — Error of fact in the consideration of the proof of confession, documentary evidence and testimony of witnesses presented at the trial: 1st. — Because in the judgment it is stated that it has not been shown that Cancel had compelled his wife, .against her will, to take care of and attend to, his three illegitimate children, whereas this point was established by the testimony of Ramón Colón, taken in connection with the statement made by Cancel himself in reply to interrogatories propounded to him. 2nd. — Because the existence of a venereal disease communicated by Cancel to his wife, having been clearly shown by the testimony of three unimpeachable witnesses and the certified abstract of account issued by Martinez’s pharmacy, of Utuado, the lower Court, instead of so considering it, supposes that such a point cannot be established except through a careful expert examination, not taking into account- the fact that it could be, and really was established by the circumstantial evidence produced, which is now the only evidence possible, since it has reference to an ocurrence which took place six years ago. 3rd. — -Because it having been clearly proven by unimpeachable witnesses, that Cancel is naturally of an ungovernable temper, jealous, suspicious and violent, and that without any justification he constantly watched and maltreated his legitimate wife and servants in the manner shown by said witnesses, this evidence is not given due weight, the judgment confining its consideration solely to the husband’s jealousy with reference to a near relative of apellant, whereas said unfounded and gratuitous jealousy, as also the bad treatment and outrages inflicted upon the wife were proven, not only by the testimony of witnesses, but also by the husband himself who, in reply to interrogatories propounded by the appellant, admits that he was greatly annoyed when he found Isabel in the house of relatives in conversation with other ladies and a distinguished gentleman, and that he had forbidden her to have any intercourse of any sort with men other than members of the family, thus reducing her to the condition of a person without any right to that social life which education and culture demand. And 4th. — Because to the ocurrenees that took place on “Tree Kings’ Day”, January 6, 1901, proven by seven unimpeachable witnesses are not given the importance which they really had, being described as a mere quarrel of no serious consequence, whereas the record of the case shows that it was without doubt- nothing short of a serious public scandal, brought about by Cancel’s jealousy, highly detrimental to his innocent wife’s reputation; said record further showing the outrageous treatment she had received at his hand in the face of an indignant people who protested against such barbarity, and his murderous intent in his pursuing her armed with a sharp piece of glass with the intention of attacking her, which he would have succeeded in doing had she not escaped to the street where the people struggling hand to hand with the aggresor had managed to save her. Third. — Error of fact in the consideration of evidence, in holding that the facts proven do not constitute that physical cruel treatment which is a ground for divorce, whereas said facts clearly show the constant moral and physical torment of which Isabel Caamaño was a victim, she having been on the point of losing her life at the hands of her husband, which even shows the existence of the old-time sevicia (physical cruelty) which is not even necessary for the dissolution of the marriage bonds, not being required by the progresive and- liberal spirit of our modern legislation. Fourth.- — -Another error of law in the consideration of the evidence, and a violation of article 1232 of the Civil Code, because in view of the result of the questions propounded to Cancel, who implicitly admits that he is of an ungovernable, violent, suspicious and jealous disposition, and confesses his ill-treatment of his wife and the countless outrages of which she was made a victim by him, these facts should have been declared by the judgment as proven, instead of which the aforesaid evidence has not been accorded in the judgment the legal weight to which it is entitled according to law. Fifth. — Another error of law in the consideration of the evidence, consisting in the failure of the trial court to consider the probatory value of presumptions, wlien justified by the facts proven in the course of the trial, all of which tended to establish the alleged cause for divorce, presumption juris tanfoim, may be taken into consideration in conformity with articles 1249 and 1253 of the Civil Code.
    In formulating the appeal for violation of law, before this Supreme Court, counsel for Isabel Caamaño stated that it was authorized by paragraphs 78 and 79 of General Order No. 118, series of 1899, and articles 1687, 1688 and 1689 of the Law of Civil Procedure, and that the same comes under paragraphs 1 and 7 of article 1690 of the latter, alleging the following grounds, to wit:
    
      First. — The five grounds contained in the notice of appeal, which she reproduces in all their parts, in reference to the appeal for violation of law.
    
      Second. — Violation of article 105 of the former Civil Code, inasmuch as in the twelfth conclusion of law contained in the judgment it is held that physical cruelty or illtreatment constituted by an isolated and independent act, cannot bring about the separation of the spouses, nor is it a sufficient cause for divorce, thus violating, by its non-application, the above-mentioned article.
    
      Third. — Error law in the consideration of evidence, since by the statement of Cancel in his written answer'to the complaint, his confession in reply to interrogatories propounded, the testimony of the witnesses, and the declaration made in the 11th conclusion of law contained in the judgment, it is proven that on the 5th of January 1901, the defendant Cancel, under violent excitement assaulted his wife who in order to save her life had to flee from the conjugal home, and in failing to recognize this fact, the lower Court has violated article 1232 of the Civil Code which declares that a confession constitutes evidence against the person making the same, thereby committing an error of law in the consideration of this evidence. The Fiscal of the Supreme Court contested the appeal by brief, counsel for respondent also contesting the same by oral argument at the hearing, counsel for Doña Isabel Caamaño making his appearance at the hearing.
    
      Mr. Alvarez Nava, for appellant.
    
      Mr. Rossy (Manuel F.), for respondent.
    
      Mr. del Toro, Fiscal of the Supreme Court.
   Associate Justice Hernandez,

after making the above statement of facts, delivered the following opinion of the Court:

Rule 79 of General Order No. 118, in prescribing that appeals in cassation for violation of law, in addition to the cases mentioned in the Law of Civil Procedure, shall also lie for error in the consideration of all sorts of evidence, has not repealed articles 1690, paragraph 7, and 1718 of the aforesaid law of procedure, which are consistent with said provision whereby it is required that such error, if of fact, shall be apparent from documents or authentic acts which show the evident error of the judge, and if of law, the law or legal doctrine alleged to have been violated shall be precisely and clearly cited, as well as the manner in which the violation occurred. According to the doctrine above set forth, the errors of fact which are supposed to have been committed in the consideration of evidence cannot be discussed in an appeal in cassation, inasmuch as they are not based on any document or authentic act which shows the evident error of the judge; and as regards the errors of law in the aforesaid consideration of evidence, involving a violation of articles 1232, 1249 and 1253 of the Civil Code, such allegations of error cannot be sustained, inasmuch as the defendant, Francisco Cancel, did not confess when replying to the questions propounded to him, that he had physically ill-treated his wife, Isabel Caamaño, nor did the trial Court consider proven any fact having' a precise and direct connection, according to the rules of human judgment, with the ill-treatment that could constitute cause for divorce. The alleged violation of section 19 paragraph 3, of General Order of March 17, 1899, in connection with section 8 of the Foraker Act is based upon the supposition that the cruel treatment of his wife by Cancel had been proven, and inasmuch as this proof is lacking, the allegation of errors of fact and of law in the consideration of the evidence being adjudged untenable, this alleged violation cannot he sustained. No practical legal object would be served by discussing whether article 105 of the former Civil Code has been violated.by reason of its lion-application for, since the lower Court did not consider that the existence of cruel treatment had been proven, but only a quarrel between the spouses, occurring on January 5, 1901, it is of but slight importance for the purposes of the appellant’s claims that a series of acts of violence he required, or that an isolated act would suffice to constitute cause for divorce. Therefore for the reasons above set forth, the appeal, as based upon each and every one of the' grounds alleged, does not lie.

We adjudge that we should declare, and do declare, that the appeal in cassation for violation of law, taken by Isabel Caamaño y Colon, does not lie, and impose upon her the costs. And it is hereby ordered that, with the return of the record, the District Court of Arecibo be apprised of the present decision for compliance therewith.

Messrs. Chief Justice Quiñones, and Associate Justices Figueras, Sulzbacher and MacLeary, concurring.  