Erwin v. Erwin, 57 N.C. 82, 4 Jones Eq. 82 (1858)

June 1858 · Supreme Court of North Carolina
57 N.C. 82, 4 Jones Eq. 82


The statute, Rev. Code, ch. 39, requires the acts which are alleged to amouut to indignity, to be set out particularly and specially, so that an issue may be taken upon each severally, and will tolerate no generality in making the charges.

Where a petitioner, for a divorce, alleged that her husband had become jealous of her without a cause, had shook his fist in her face, and threatened her, and declared to her face, and published to the neighborhood that the child, with which she was pregnant, was not his; that her condition had, from such treatment become intolerable, and her life burdensome, and that she had been compelled to quit his house and seek protection of her father, it was Held that she had set out enough to entitle her to alimony pendente lite.

Appeal from the Court of Equity of Cabarrus County, from an order of his Honor Judge Hick, allowing alimony to the petition qv pendente lite.

The petition set forth that she was a widow of forty years old when she married the defendant, who was about the same age; that the match was determined on quite suddenly, she having very little acquaintance with the defendant, but having heard of him an excellent character; but that in about three months after their intermarriage, she found the defendant to be intemperate ; that she could not please him- — that in about eight months after they were married, he became jealous of her; that during that month he charged her to her face with infidelity, and made the same accusation to the neighbors amongst whom they lived; that in this way the slander against her became a public rumor; that he assailed her with low accusations, amongst other things accused her of stealing; that not *83long after her marriage she became pregnant by him, discovering which, he accused her of infidelity, and said that the child of which she was pregnant, was not his; that he deported himly violently towards her, and made various assaults about her face with his fists, but never actually struck her; that so rude, violent and offensive was his conduct and language, that her condition became intolerable, and her life burdensome; and that she was thus compelled to quit the defendant’s house and throw herself upon the kindness of her father for support.

Upon the return of the process issued in this case, the plaintiff moved for alimony pendente lite, which was resisted by the defendant on the ground that the bill did not set forth enough to entitle the plaintiff to the relief which she sought.

The Court, however, made the order for alimony as moved for, and the defendant appealed.

Wilson and Boyden, for the plaintiff.

Bcurringer and Jones, for the defendant.

Pearson, J.

Eor the purpose of this motion, all of the allegations set out in the petition are to be taken as true. We are satisfied that both the matter, and manner of stating it, bring the petitioner’s case within the statute. Questions of this kind must, in a great measure, depend upon the peculiar circumstances of each case, and for the purpose of aiding in making the application, some pains were taken in Everton v. Everton, 3 Jones’ Eq. 202, to review the English, and our own law, upon the subject of cruelty and indignity to the person. It will be seen from the exposition there given, that our law is more liberal than the English; for instance, living apart in adultery, is, with us, a ground for absolute divorce, and not merely a divorce from bed and board; and in respect to the latter, such indignities to the person of the wife as render her condition intolerable, or her life burdensome, are made a distinct ground, in addition to such cruelty as endangers her life, which in the English books is termed “ scevitia.” But, to keep the line distinctly marked, between a mere outbreak of passion, accom*84panied with abusive language, in which the wife is apt “to maintain a contest of retaliation,” unless her spirit is broken, aud she is in fear of bodily harm, and such indignities as render her condition intolerable or her life burdensome, the statute requires the words or the acts which are averred to amount to such indignity, to be selli forth particularly and specially, so that an issue can be taken upon each, severally, and will not tolerate generality in the manner of making the charges.

In this case, there is the requisite certainty in charging the indignities, and no one can read over the petition, and fail to be satisfied that the matters charged amount to such indignities to the person of the wife, as to render her condition intolerable or her life burdensome, as distinguished from such cruelty as endangers her life. Where a husband charges his wife with infidelity and disowns the child of which she is pregnant, if he does not believe the charge to be true, he is a brute— drunk or sober, and the only motive that can be imputed to him, is a desire to be rid of her, and a determination either, to break her heart, or force her to leave him. If he believes the charge to be true, he is dangerous, and the wife’s safety requires her to leave him. So, in either view, the petitioner had good cause for the separation. Patience had ceased to be a virtue, and she was entitled to alimony until the husband could be heard, and the matter fully investigated.

In Everton v. Everton, supra, the petitioner did not allege that she separated from her husband in consequence of the indignities offered to her. She seems to have taken the thing quietly, and to have left at her own good pleasure. “ The language is singularly vague and indefinite upon this point of her being ordered to leave the defendant’s house.” This consideration had much weight in the decision of that case, and distinguishes it from our case, and that of Coble v. Coble, 2 Jones’ Eq. Rep. 392, and Earp v. Earp, 1 Jones’ Eq. Rep. 239.

Pee Cueiam. Decree below affirmed.