
    Caroline A. Davies vs. Thomas Davies.
    Under our statute, (2 R. S. 186,) a limited divorce, or separation from bed and board, may be granted to p married woman for cruel apd inhuman treatment by the husband, and also for such conduct on the part of the husband towards his wife, as may render it unsafe and improper for her to cohabit with him.
    But husband and wife should not be lightly separated, or without good cause. It is the duty of the wife to Jive with her husband, and put pp with his illnature and petulance, and bear with his infirmities, if she can do so with safety to her person, and without great personal apprehension and discomfort.
    What circumstances were held sufficient, in this case, to warrant a decree for a limited divorce, in favor of a wife, on the ground of cruel and inhpman treatment.
    If a wife continues to cohabit with her husband for several months, after receiving from him such treatment as would justify her in applying for a separation, this implies a forgiveness of the ill treatment, and a purpose to continue conjugal relations with her husband. And after such a lapse of time and such condonation, the court will not grant a divorce for such ill treatment if in the interval the husband has treated his wife kindly, and given her no further cause of complaint.
    But if she has occasion to complain of his treatment, afterwards, she may refer to such ill treatment, and bring the same forward as a part of her grounds for believing that she cannot safely continue to cohabit with him. Under such circumstances, her case rests upon a review of all his conduct towards her during their married life, and not upon any single act.
    The question in this class of cases is, had the plaintiff reasonable ground of apprehension in regard to her personal gpfety 1 Rad she any ground tfi he? lieve tliafc she was exposed to any physical injury by a continuance of her cohabitation with her husband 1
    
    There must be, in all cases, ill treatment and personal injury, or a reasonable apprehension of personal injury. Words of menace, accompanied by a probability of bodily violence, are sufficient.
    rilHIS was an action brought by a wife against her husJL band for a limited divorce.' The parties were married in February, 1863. Previous to the marriage the plaintiff had been the defendant’s housekeeper. There were no children born of the marriage. Eo difficulty occurred between the parties until about January, 1866, when a young woman, known to both parties, came to their house as a visitor. Soon after her arrival, the plaintiff saw, or suspected, a too close intimacy between this young woman and her husband, the defendant. This gave rise to much difficulty, and the plaintiff repeatedly remonstrated with the defendant on the subject, and at times made somewhat harsh accusations of adultery between them. Several acts of intimacy, not amounting to proof of adultery, were sworn to by the plaintiff on the hearing before the referee who took the testimony in the case. From this time there were estrangements and repeated quarrels between the plaintiff and defendant, on the subject of this young woman, the plaintiff insisting that she should leave the house, and the defendant insisting upon her staying to conclude her visit. During these altercations, violent and unseemly language was frequently used by both parties, the defendant using profane and in some instances indecent language towards his wife, calling her unchaste, and reproaching her on account of her homeliness and unattractive appearance, as he termed it. She retorted, accusing him of illicit intercourse with the young woman in question, of attemping to poison her, the plaintifi" and at times, when excited, by his actions and language, used improper language, calculated to irritate and provoke- The defendant, several times, threatened her life, and used personal violence towards her. This state of affairs continued until July, 1866, when -it culminated in a serious quarrel between the plaintiff' and defendant, during which the latter choked the former, committed severe personal violence upon her, and struck her a blow with his fist, upon the left temple, severing the temporal artery, and endangering the plaintiff’s life.
    The plaintiff, after this, continued to live and cohabit with the defendant, but their relations were by no means pleasant or agreeable. Tor a few days, at intervals, they would live quiet and peaceably, when the smouldering fires would again burst forth, and violent and abusive criminations and recriminations were the result. He, at times, would continue his threats of personal violence, and apply to the plaintiff opprobrious names and epithets, and she would repeat her charges of adultery, and reply to the defendant in harsh, terms. So they lived together down to October, 1866, when, one Sunday morning, they had another quarrel, during which the defendant raised his boot, and threatened the plaintiff that “ if she did not go out of the room pretty lively he’d knock it over her head.” The defendant at this time also conducted himself in a very violent and abusive manner towards the plaintiff, telling her she should go to state’s prison, and shaking the coffee-pot in her face; using at the same time profane and abusive language towards the plaintiff, saying “ he wanted nothing more to do with her; that if it was not Sunday he would throw her out of doors; that he would throw or boot her friends out of the house, if they came to see her,” and conducted himself with great violence and impropriety. On the Tuesday following, the plaintiff left the defendant’s house, and went to her brother’s to reside. She testified that she-had “given up all hope that there was any safety or peace of mind any further.”
    
      
      John C. Chumasero and C. C. Davison, for the plaintiff.
    
      J. S. Martindale, for the defendant.
   E. Darwin Smith, J.

It is perfectly evident, I think, from the proofs in this action, that the parties cannot live peaceably together and perform their proper conjugal duties towards each .other. The spirit and temper of both of them forbid it. The defendant had confessedly lost all attachment and respect for his wife, and clearly desired to be rid of her, before she left him. As they must, therefore, live apart hereafter, the question presented to the court is, whether such separation can and ought to be legalized, so as to permit them to live thus apart, without further strife and in apparent decency and quiet. It is the duty of the wife to live with her husband and put up with his illnature and petulance, and bear with his infirmities, if she can do so with safety to her person and without great personal apprehension and discomfort. Husband and wife should not be lightly separated, or without good cause. \

Under our statute, a limited divorce, or separation from bed and board, may be granted to a married woman for cruel and inhuman treatment by the husband, and also for such conduct on the part of the husband towards his wife as may render it unsafe and improper for her to cohabit with him. (2 R. S. chap. 8, part 2, art. 4, p. 186.)

I think there can be no doubt that the defendant’s treatment of his wife on the 23d day of July, 1866, as they both describe the scene and transaction, was such cruel and inhuman treatment as would warrant a divorce, according to all the cases. (See Burr v. Burr, 10 Paige, 20; Whispell v. Whispell, 4 Barb. 220; 17 Abb. 21.) But the plaintiff continued to cohabit with the defendant, after-wards, until about the last of October, 1867, when she left his house—a period of about fifteen months. This con-tinned cohabitation for so long a period after the ill treatment of July, 1866, implies a forgiveness of such treatment, and a purpose to retain here conjugal relations with the defendant, and to trust to his good treatment for the future. After such a lapse of time and such forgiveness, the court would not grant a divorce for such ill treatment, if, in the interval, the defendant had treated his wife kindly and given her no further cause of complaint. The wife must, under such circumstances, be deemed to have elected to abide with her husband and trust to his assurances of amendment and future good treatment. But if she has occasion to complain of his treatment after-wards, she is not debarred the right to refer to such ill treatment, and bring the same forward as a part of her ground for the belief that she cannot safely continue to cohabit with him. Her case rests upon a review, under such circumstances, of all his conduct towards her during their married life, and not upon any single act.

The question, at all times, in this class of cases, is, had the plaintiff reasonable ground of apprehension, in regard to her personal safety, at the time she left her husband ? Had she any ground to believe that she was exposed to any physical injury by a continuance of her cohabitation with her husband ? (1 Bishop on Mar. & Biv. §§ 715, 716, 717.) There must be in all cases ill treatment and personal injury, or a reasonable apprehension of personal injury. (Whispell v. Whispell, 4 Barb. 219.) Words of menace, accompanied by a probability of bodily violence, will be sufficient. (Id.)

The testimony of the wife, in this case, if believed, I think fully establishes the fact that the plaintiff was more or less exposed to personal violence during her cohabitation with the defendant from the time of her recovery, after the injury inflicted upon her by the defendant, in July, 1866, until she finally left him. She testified that he made frequent threats of personal violence. He threatened, at one time, to pitch her out of the sleigh, if she got in, and give her a horse-whipping.

On Sunday evening, before she left him, she says, “ he raised his boot, and said ‘ if I did not go out of the room pretty lively, he would knock it over my head.’ ” On the same morning, at breakfast, after some conversation about the “young woman,” Helen, who seems to have been the chief cause of the jealousy, suspicion and trouble between these parties, she says: “he jumped up, and took the coffee-pot, and commenced shaking that in my face.” She also testifies that, on this occasion, he also said “ he didn’t want to have anything more to do with me.” He also said “ if it was not Sunday morning, he would throw me out of doors.”

These instances of assault and menaces, and threats of personal violence, tend to prove that he was capable of using such violence upon her person, and gave, I think, ground of reasonable apprehension, on her part, that she might suffer personal injury if she continued to cohabit with him.

It is true the defendant denies much of this testimony, but I am inclined to think that I should rather believe the plaintiff than the defendant, when their testimony comes in conflict, and for the reason that her statement is affirmative, and his simply denial, and also that he admits much that tends to corroborate her statements. He admits the personal violence used in July, 1866, and the use of frequent harsh language towards her, and the threat to throw her out of the sleigh. I also prefer crediting the wife’s statement, for the reason that the testimony, upon the whole, shows that the husband possessed a violent temper, and had clearly lost all affection for his wife, and wished to be rid of her, and was just in that frame of mind, when she left him, to do what she says he threatened to do. This view is strongly confirmed by the letter produced, which he wrote soon after she left him, and when his passions were not excited by any immediate provocation on her part. In that letter to her brother, he writes that he proposes to commence a suit in the courts, for a divorce; and says, also: I have made up my mind the foolish, simple, but black-hearted woman will never live with me again.” This letter is dated November 11, 1867, and must have been written ten days or two weeks, probably, after the plaintiff left the defendant’s house.

It is quite apparent that the plaintiff did not behave well herself—that her language and conduct were in many particulars unbecoming and provoking. Perhaps, however, it was about such language as might be expected from a woman in her situation and grade of life, and of her state of refinement, rendered jealous, and aggravated by the defendant’s treatment of her in keeping another and a handsomer woman in the family, under the circumstances detailed in the evidence, and a woman, too, whom he seemed to admire and treat with more kindness and attention than his wife. Many of the plaintiff’s fears and suspicions were undoubtedly groundless, but they were probably honestly entertained, and were caused by him, and were rather fostered than allayed by his conduct towards Miss Button, in the presence of his wife.

Upon the whole case, and a review of his whole conduct towards the plaintiff during the period of their entire cohabitation as husband and wife, I think I must find that his treatment of her was cruel and inhuman; that she had, when she left him, reasonable ground of apprehension of personal injury in case she continued to cohabit with him; and that her conduct towards him was not sufficiently culpable to debar her of her right to a divorce from bed and board, and a suitable provision for her support. I must therefore so decree, and direct a reference to some member of'the bar, to ascertain what would be, under the circumstances, a suitable provision to be made by the defendant for her support and alimony.

[Livingston Special Teem,

April 26, 1869.

E. D. Smith, Justice.]  