
    Carrie C. Fowler, Resp’t, v. William P. Fowler, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 23, 1890.)
    
    1. Divorce—Limited.
    The several subdivisions of §-1762 of the Code are alternative in their provisions, and the several' causes prescribed by them for which a separation may be decreed are independent of each other.
    2 Same.
    It appeared from the evidence that defendant made false charges of adultery against plaintiff; made persistent efforts to entrap, her into a confession of guilt; that in ten years she was ten times with child by defendant; that by his course of conduct she was kept in ill health and had attempted to commit suicide. Ildd, that a case was made out for a separation under subd. 2 of § 1762 of the Code.
    3. Same—Evidence—Privileged communications.
    A declaration made by the defendant the second night after marriage, that he did not love the plaintiff and had made a mistake in marrying her, which is the beginning of a course of ill-treatment, is not a privileged, communication.
    
      4. Same.
    A pretended confession of adultery by the husband, made with the hope of inducing a similar confession by the wife, is not privileged.
    5. Same.
    In such an action a letter written by plaintiff, and delivered by her to defendant shortly before leaving him, reciting the history of them married life and giving her reasons for leaving, is competent evidence as a declaration made to defendant himself of facts which he had an opportunity to deny or excuse.
    Appeal by defendant from an interlocutory judgment, in an action for a limited divorce, entered on the findings and decision of the court at special term.
    
      F. F. Drake, for appl’t; F. F. Wellington, for resp’t.
   Dwight, P. J.

The findings of fact in this case cannot be disturbed. They are completely supported by the testimony of the plaintiff, which is corroborated, in important particulars, by the testimony of other witnesses, by collateral circumstances and by admissions of the defendant. Under all the disclosures of the evidence it was permitted to the trial court to give full credit to the plaintiff and to reject the defendant’s testimony so far as it conflicted with hers. This being done, a very strong case is made, within the language of the statute, “ of such conduct on the part of the defendant towards the plaintiff as may render it unsafe and improper for the former to cohabit with the latter.” Code of Civ. Pro., §1762, subd. 2.

The course of conduct of the defendant towards the plaintiff as thus portrayed might well be denominated cruel and inhuman. It was characterized by complete disloyalty of sentiment, denial of confidence and affection, base and unfounded suspicions, false and malicious accusation. He falsely charged her to her face and to her friends, with adultery with her physician, with the physician of her child and with the husband of her sister. He falsely stated that on one occasion he discovered her in the act, and that he had a written confession of the fact from her particeps criminis. He made persistent efforts to entrap her into a confession of guilt and was watchful and solicitious, not in the defense of his wife’s purity and his own honor, but to obtain evidence that both had suffered defeat. In the meantime, during the ten years from their marriage to their separation, the plaintiff was ten times wnth child by the defendant; having been five times confined with living children and five times by miscarriages.

The trial court finds that the effect of this course of treatment was “ to keep the plaintiff in ill health, to throw her into a condition of nervous prostration and to make it unsafe and improper for her to cohabit with the defendant; ” and the evidence shows that she was twice brought to a condition in which she attempted to destroy her own life.

Here there was the physical injury and the physical danger necessary to constitute cruel and inhuman treatment, even though the physical violence, commonly an element of such treatment, was wanting.

The trial court has not found, in terms, that the plaintiff was subjected to cruel and inhuman treatment, but has found the existence of the cause for separation prescribed by the second subdivision of the statute, quoted above, and that finding equally supports the conclusion of law upon which the judgment was based.

It may well be questioned whether, under the later authorities, even where the sole cause of separation alleged is cruel and inhuman treatment, it is necessary to prove physical violence. Kennedy . v. Kennedy, 73 N. Y., 369 ; Bihin v. Bihin, 17 Abb. Pr., 19 to 26; DeMeli v. DeMeli, 67 How. Pr., 20-32; Lutz v. Lutz, 31 N. Y. State Rep., 718. Several of these cases iecognize the principle that a course of conduct which produces great mental distress may be cruel and inhuman, even though physical violence is not inflicted. But in this case there is the allegation and the finding, abundantly supported by the evidence, of a course of conduct which rendered it improper and unsafe for the plaintiff to^cohabit with the defendant. The several subdivisions of § 1762, supra, are alternative in their provisions, and the several causes, prescribed by them, for which a separation may be decreed, are independent of each other.

Several exceptions to rulings of the court are strongly insisted upon as pointing to error on the trial. Two of them relate to Communications made by the husband to the wife, testified to by the latter, which, it is urged, were privileged communications. One was the declaration of the defendant to his young bride, on the second night after their marriage, that he did not love her, and that he had made a mistake in marrying her. If to make such a declaration at such a time was an act of cruelty; _if it was the early beginning of a course of treatment, persisted in throughout their married life, which was destined to destroy her happiness, to rob her of her peace of mind, to undermine her physical and mental health, and to drive her to attempts upon her own life, and thus to render it improper and unsafe for her to cohabit with him, then it was not a privileged communication. ' It was to be received in evidence, not as a declaration of the fact declared, but as a fact in itself contributing to constitute the plaintiff’s cause of action. Such acts cannot be concealed under the cloak of privilege.

Another objection by the defendant on the same ground seems to be equally untenable. The plaintiff was permitted to prove, by her own testimony, that the defendant at one time made a statement to her, in the form of a confession, that he had had improper relations with a woman in his office. There was no charge of adultery against the defendant in the complaint, and the declaration was plainly inadmissible to prove the fact confessed. But further testimony of the plaintiff shows the true character of the so called confession, and demonstrates the admissibility of the evidence. The defendant afterwards admitted to the plaintiff that the pretended confession was false, made, as he said, out of whole cloth, and with the hope of inducing a similar confession from her in return. In other words, “ this confidential communication ” from the husband to the wife was a deliberate device to entrap the wife into a confession of guilt on her own part. There is no shield of privilege for such an-act as this.

The remaining exception to be noticed here relates to the admission in evidence of a letter written by the plaintiff to the defendant shortly before she left his house. She herself handed it to him, and he read it. Ib was a long letter, in which she reviewed the history of their unhappy married life; it reminded him of her struggles and sacrifices in the vain effort to gain his confidence and affection, and depicted the cruelty and injustice which she had suffered at his hands, and it disclosed a condition ■of mind bordering on despair. It was competent evidence because it was a declaration made to the defendant himself of facts which he had the opportunity to deny or excuse. The response which the defendant made to this communication is in evidence, and it was for the trial court to attach to both their proper significance as bearing upon the issues in the action.

We are of the opinion that the evidence in the case supports the finding of fact which wé have considered, and that such finding in turn supports the conclusion of law upon which the judgment is based; and we have discovered no 'error on the trial which vitiates either.

The judgment should be affirmed.

Interlocutory judgment appealed from affirmed, with costs.

Macomber and Corlett, JJ., concur.  