
    Fortuño v. Ferreras.
    Appeal from the District Court of San Juan.
    No. 70.
    Decided November 20, 1903.
    Divorce. — Change or Religion. — Although judicial order of March 17, 1899, referring to marriage and divorce provides that violence of the husband to force his wife to change her religion is ground for a divorce, the alleged difference of worship and use of violence by the husband must be established in such manner as to leave no doubt of the impossibility of the couple living together and the probability of such cohabitation proving dangerous to one of them.
    
      Id. — Admission on Defendant. — Mutual Consent. — The admission of the hushand to charges contained in the complaint is not proof of the facts alleged nor sufficient reason for decreeing a divorce, because mutual consent is not a ground for divorce, for such admission, unless the facts are otherwise established, might be the result of collusion between the parties for the purpose of obtaining a divorce.
    STATEMENT OF THE CASE.
    This is a declaratory action for divorce prosecuted in the District Court of San Juan by Emilia Juana Fortuño y Larroche, a resident of this city, as plaintiff, represented by her attorney, Luis Freyre Barbosa, against Joaquin Ferreras Pagán, also a resident of this city, as defendant, which case is pending before us on appeal in cassation for error of law, taken by counsel for the plaintiff, from the judgment rendered by the said District Court, which literally reads as follows:
    “Judgment. — In tlie City of San Juan, Porto Pico, October 11, 1902. This is a declaratory action for divorce instituted by Emilia Juana Fortuño y Larroche, a resident of this city, represented by her counsel, Luis Freyre Barbosa, against her husband Joaquin Ferreras Pagán, of this city.
    “Luis Freyre Barbosa, Esq., on behalf of Emilia Jtíana Fortuño y Larro-che, brought an action for divorce against her husband Joaquin Ferreras Pagán, in the District Court of San Juan, alleging that said Ferreras, having some time ago embraced Protestantism, had employed violent means to compel her to abjure the Homan Catholic religion of which she was an ardent votary, and citing, as legal grounds, section 8 of the Foraker Act and Judicial Order of March 17, 1899, which provide that the aforesaid grounds shall constitute cause for divorce.
    “The complaint was accompanied by the certificate of their marriage, performed according to the rites of the Church, on July 29, 1894, and the certificates of birth of the children had by them during said marriage. .
    “The complaint having been admitted and notice thereof having been served upon the defendant, he filed his answer acquiescing therein, and stating that the facts as alleged in the complaint were true, whereupon the plaintiff moved that a day be set for- voting upon the judgment, for, as she understood, when the defendant admits the charge there is no necessity of proceeding further, which motion was dismissed for the reasons set forth in the order of August 13, 1902.
    
      “The taking of evidence having been requested, a day was set' for that purpose after the complaint had been answered by the Fiscal, when the plaintiff presented two witnesses who testified upon the conclusion of the oral, argument, and after due deliberation, the court proceeded to vote upon the judgment in opqn court. Judge Juan J. Perea prepared the following opinion:
    ‘ “Although the Judicial Order of March 17, 1899, referring to marriage and divorce provides that violence irsed by the husband against his wife, to compel her to change her religion is a cause for divorce, the alleged difference in worship and the use of violence by the husband must be established in such manner as to leave no doubt of the impossibility of the couple living together and the probability of such cohabitation proving dangerous to one of them.
    ‘ “The only evidence proposed and introduced, — the testimony of the two witnesses who stated that they had been employed as servants of the couple, —is not sufficient in the opinion of the court, to prove the existence of those circumstances, inasmuch as they do not agree in regard to the religion professed by the husband; for, while one testified that he was a protestant, the other asserted that he was a free-mason, and upon such testimony the dissolution of the marriage bond cannot be decreed for the cause alleged, it being necessary that all the particulars of said conflicting religious beliefs of the spouses, and the acts of violence resorted to should be proven, as also the real object thereof.
    ‘ “The husband’s acquiescence in the complaint by admitting the charges therein is no proof of the facts alleged, nor is it sufficient ground for granting a decree of divorce, because, not only the dissolution of the marriage cannot be left to the discretion of the spouses, mutual consent not being a cause for divorce, but such acquiescence, unless the facts are otherwise established, might be the result of collusion between the spouses for the purpose of obtaining a divorce.
    ‘ “The plaintiff having lost her case on all points, costs should be taxed against her.
    “In view of aforesaid Judicial Order and General Order No. 118, we adjudge that we should declare and do declare, that the action for divorce instituted by Emilia Juana Fortuno Larroche against her husband, Joaquin Ferreras Pagan, does not lie, and accordingly dismiss the same with costs against the plaintiff.”
    
      ‘ “Thus by this our judgment, finally adjudging, do we pronounce, command and sign — Juan Morera Martínez — Juan J. Perea — Manuel F. Rossy.—
    “Publication : The foregoing judgment was read and published by Judge Juan J. Perea, at public session of the court, held this 11th day of October, 1902. Certified to by me — Ramón Falcón”.
    
      From this judgment counsel for the plaintiff, Emilia For-tuito, took an appeal in cassation for error of law which was allowed, and the record having been forwarded to this Supreme Court, after citation of the parties, the appellant appeared and the case was proceeded with as an appeal pursuant to the provisions of the act of the Legislative Assembly of this Island, approved March 12, 1903, estab- . lishing this Supreme Court as a court of appeals. A day was set for the hearing, at which the representative of the office of the Attorney General, Mr. Emilio del Toro, was the only party present.
    
      Messrs. Palmer and Freyre Barbosa, for appellant.
    
      Mr. del Toro, Fiscal of the Supreme Court
    The respondent did not appear.
   Mr. Justice Quiñones,

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

The-findings of fact of the judgment appealed from, and the conclusions of law, excepting the second, are accepted. The only evidence introduced by the plaintiff, Emilia For-tuito, namely, the testimony of two witnesses who stated that they had been in the service of the married couple, is not, as it should he, sufficiently explicit and circumstantial to allow the court to form a correct judgment of the true causes of the dissensions occurring between the spouses, and the frequency and seriousness thereof, which elements are indispensable in order to judge correctly as to the justice and legality of the divorce sued for.

We adjudge that we should affirm and do affirm the judgment appealed from, with costs against appellant.

Justices Hernández, Sulzbacher and MacLeary, concurred.

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