
    Loaiza v. Caballero.
    Appeal from the District Court of San Juan.
    No. 59.
    Decided April 4, 1904.
    Actions — Evidence.—In all classes of actions, the burden rests upon the plaintiff to establish his ease by a preponderance of the evidence. Seld, upon acceptance of the facts found by the trial court, that the plaintiff has fully complied with this requirement in the present case.
    Divorce — Acquiescence of the Wife in Complaint — Abandonment—Mutual Consent. — The acquiescence of the wife in an action for divorce, manifested by her distinctly stating that more than three years ago she abandoned the conjugal home, during whieh time she had not even addressed a word to her husband, in consequence of their constant quarrels and the jealousy which always existed between them, whieh statements are corroborated by the testimony of two witnesses, should not be understood as implying mutual consent to a divorce by the parties, but as implying that all such acts, done knowingly and persistently by the wife, constitute the abandonment recognized by article 164 of the Civil Code as a ground of divorce.
    Costs.- — The acquiescence of the defendant in the complaint, her confession in court and failure to appear before the appellate court, are matters whieh justify the equitable imposition of costs.
    * STATEMENT OE THE CASE.
    The Fearing was Fad in tFe action for divorce prosecuted in tFe District Court of San Juan by Francisco Loaiza González, married, of age, and a resident of Bio Piedras, as plaintiff, represented in this Supreme Court by Attorney Sandalio Torres Monge, tFe Fiscal being one of the parties, against Mauricia Bosario Caballero, wFo Fas failed to appear, for wFicF reason tFe service of notices was made in tFe court room; said case being now before ns on appeal taken by Loaiza from tFe judgment rendered, wbicF reads as follows:
    “Judgment. — In tbe city of San Juan, Porto Rico, May 19, 1903. An oral and public hearing was had of the present declaratory action for divorce, brought by Francisco Loaiza Gonzalez, married, of age, and a resident of Río Piedras, as plaintiff, represented by Attorney Sandalio Torres Monge, against "Mauricia Rosario Caballero, known as ‘Mariana,’ thirty years of age, married and residing in Río Piedras, as defendant, represented by Attorney José C. Rodrí-guez Cebollero, the other legal conditions of the parties being unknown.
    “In September, 1902, Attorney Sandalio Torres, on behalf of plaintiff herein, brought an action for' divorce against his client’s wife, based on the following facts: That on December 2, 1889, the plaintiff and defendant contracted canonical marriage in the town of Río Piedras; that the couple lived in perfect peace during the first ten years, the best understanding prevailing between the spouses, who were wholly given up to the care of their children; that this harmony lasted until the jealousy of the wife brought discord into their home, which was abandoned by the latter, who more than two years ago went to live with her parents; and that, seeing the wife’s persistence in her determination to abandon her husband, proceedings to secure a conciliation were instituted in the municipal court of Río Piedras without a.ny result. He prayed that after the proper proceedings the complaint be sustained, with costs against the defendant, should she oppose the same.
    “After correcting certain defects the said complaint was admitted, notice thereof being served upon the defendant and the Department of Justice. Answer thereto was made on behalf of the defendant by Attorney Rodríguez Cebollero, who admitted that the facts stated in the complaint were true, but stated that although the fact of abandonment more than four years ago was true, it was also true that there had been . sufficient reasons therefor, among these, the repeated absence of the husband for periods more or less extended, during which the wife and children were left in the greatest destitution, without even the most indispensable necessaries of life; and the lack of affection for them, evinced by the husband, which, together with his abusive language, compelled her to abandon her husband’s house, as the only remedy to put an end to her sufferings. Notwithstanding these facts, she acquiesced in the complaint as formulated.
    ‘ ‘ The parties being summoned to a verbal hearing for the purpose of submitting such evidence as they proposed to introduce in support of their respective claims, the only one to appéar was the plaintiff, who proposed the proofs of confession in court and the testimony of witnesses, which, by an order of the 4th of February last were declared pertinent and ordered to be taken, with citation of the adverse party.
    “At the oral trial the following witnesses testified: Alejandro Saavedra, who stated that over three years ago the wife (of the plaintiff) abandoned her husband’s house, in consequence of quarrels arising from jealousy between them; that they separated, breaking up house, and going away from each other; that it is now two years since he has been living in Mayagüez and she in Bio PiedrasManuel Bivera Bamirez, that the wife (of plaintiff) abandoned her husband two or three years ago, he going to Mayagüez after she had left him, and that he does not know the cause of this separation; Benito Bivera, that more than two years ago they mutually separated, breaking up house on account of their constant quarrels.
    “At aforesaid oral trial the defendant, in answer to interrogatories, said: That more than three years ago witness had abandoned her husband’s house, during which time she had not even addressed a word to him, and that this was due to the constant quarrels and jealousy that had arisen between them.
    “After having finished the taking of evidence, and hearing the arguments of counsel for both parties, the court rendered judgment rejecting the complaint and imposing costs upon the plaintiff.
    “In the hearing of this case the rules of procedure have been observed.
    “Judge Frank H. Bichmond prepared the opinion of the court, as follows: .
    “ If in all classes of actions it devolves upon the plaintiff fully and satisfactorily to prove the kind of action he maintains, this is the more so in suits, such as those of divorce, which affect the civil status of persons, by reason of which circumstance the evidence taken at the oral trial should be rejected as insufficient, because from the testimony of the three witnesses examined nothing is shown beyond the fact that the parties separated by mutual consent, as a result óf the-various quarrels occurring between them.
    “Although abandonment for a longer period of time than one year is one of the causes for divorce admitted by section 164 of the existing Civil Code, under subdivision 5 thereof, such abandonment should not be confounded with the more or less justified mutual separation of the spouses, a separation by mutual consent not constituting legal abandonment upon which the judicial dissolution of the marriage can be based.
    “The litigant who loses his case on all points should be adjudged to pay the costs.
    “In view of the section cited and other articles of the Civil Code, the articles of the Law of Civil Procedure applicable to the case, and General Order No. 118 of 1899, we adjudge that we should declare and do declare that the present complaint should be dismissed, and accordingly that we should absolve and do absolve the defendant therefrom, with costs against the plaintiff.
    “Thus by our decision, finally adjudging, do we pronounce, command and sign. Juan Morera Martínez, Frank IT. Richmond, José Tous Soto.”
    Prom the foregoing judgment an appeal was taken by Francisco Loaiza González, and tbe record having been forwarded to this Supreme Court, after citation of tbe parties, tbe appellant appeared and examined tbe papers witbin tbe prescribed period, tbe respondent failing to appear.
    Tbe Fiscal, upon examination of tbe record,. sustained tbe appeal for tbe reasons stated in bis written argument.
    A day having been set for tbe bearing, tbe same was had and the appellant and the Fiscal argued in favor of a reversal of tbe judgment appealed from.
    
      Mr. Torres Monge, for appellant.
    
      Mr. del Toro, Fiscal, for tbe People.
    The respondent did not appear.
   Mb. Justice Figuekas,

after making tbe above statement of facts, delivered tbe opinion of tbe court.

Tbe findings of fact contained in aforesaid judgment are accepted.

If there can be no question as to its being incumbent upon tbe plaintiff to prove tbe action maintained by him, this essential requisite has been complied with in tbe present case, inasmuch as tbe defendant has acquiesced in tbe complaint, and, replying to interrogatories, distinctly stated that more than three years ago she abandoned the conjugal roof, during which time she had not even addressed a word to her husband, and that this conduct on her part was the result of their constant quarrels and the jealousy existing between them — a statement substantially borne out by the testimony of two witnesses who impute the abandonment to the wife, Mauricia Eosario Caballero.

The question here is not one of separation by mutual consent, as stated in the second conclusion of law of the judgment appealed from; but, on the contrary, it has been shown that the wife had looked upon her husband with indifference and aversion, she having left him for more than two years alone in the home that both had formed, and forgetting the marriage ties that impose upon both the duty of living as one under the same roof; 'all which acts, knowingly and. persistently done by the wife, constitute the abandonment referred to in subdivision 5, section 164, of the revised Civil Code.

Her acquiescence in the complaint, her confession in court, and her non-appearance before this Supreme Court, are facts that compel the court to give an equitable decision in the matter of costs.

In view of the provisions cited of articles 358, 364 and 371 of the Law of Civil Procedure, rule 63 of General Order No. 118, series of 1899, and the act of the Legislative Assembly of- March 12, 1902, we adjudge that, reversing the judgment appealed from, rendered by the District Court of San Juan on the 19th of last year, we should declare and do declare that the action for divorce was properly brought, and accordingly the marriage contracted between Francisco Loaiza González and Mauricia Eosario Caballero, December 2, 1899, is dissolved, without special imposition of the costs of both trial and appeal.

Chief Justice Quiñones and Justices Hernández, Sulz-bacher and MacLeary concurred.  