Smith v. Smith

40 N.J. Eq. 566

• Court: Supreme Court of New Jersey
• Decided: November 15, 1885
• Status: Published

Opinion

The opinion of the court was delivered by

Scudder, J.

The complainant, Alicia A. Smith, filed a bill for divorce from bed and- board against her husband, Richard Smith, for extreme cruelty, under the act concerning divorces. On motion for alimony pendente lite, counsel fees and other provision for the conduct of the suit, the chancellor made such allowance and provided for the expenses of the suit as it should progress.

The opinion on this motion for alimony, based on the bill and affidavits thereto annexed, will be found in 6 Stew. Eq. 458. On bill, answer and proofs, a decree was subsequently advised dismissing the bill, but allowing costs and counsel fees to the complainant. Both parties appeal from the adverse portions of this decree.

The facts are fully stated in the opinion of the vice-chancellor, and such only will be here repeated as are necessary to show the grounds of our decision. The term “ extreme cruelty,” used in our statute, it was argued on the part of the defendant, gives) another and a stronger meaning than the word “ cruelty,” alone, which is found in other laws. It is, however, but another definition of the word scevitia, which is taken from the civil law, and has long had a recognized meaning in the ecclesiastical and divorce courts. This meaning has been evolved rather by an application of the term to the particular facts of each case as it has been presented, than by an attempt at exact definition of it which will be appropriate to all cases. Lord Stowell, in Holden v. Holden, 1 Hagg. Eco. 453, says “that everything is, in legal construction, scevitia, which tends to bodily harm, and in that manner renders cohabitation unsafe; whenever there is a tendency only to bodily mischief, it is a peril from which the wife must be protected, because it is unsafe for her to continue in the discharge of her conjugal duties; and to enforce that obligation upon her might endanger her security and perhaps her life.” In this he but follows the leading case of Evans v. Evans, 2 Hagg. 35, in which the great ability of this famous jurist was so conspicuously shown. In that he says : “ In the older cases of this sort which I have had an opportunity of looking into, I have observed that the danger to life, limb or health is usually inserted as the ground upon which the court has proceeded to a separation.” Sir Herbert Jenner Fust, in Dysart v. Dysart, 1 Rob. Ecc. 470, 478, further illustrates and applies this term to other facts with like conclusion as to its meaning. In Milford v. Milford, L. R. (1 P. & D.) 295, it is said the ground of the court’s interference is the wife’s safety, and the impossibility of her fulfilling the duties of matrimony in a state of dread. Bishop, in his work on Marriage and Divorce vol. I. § 717, does not depart from the expressions in the older cases in defining cruelty, and cites many, in his note, from which it is derived.

The recent handy reference-book — Stewart—on the law of Marriage and Divorce § 261 &c., has collected the words used in many statutes, and the construction put upon them in cases which define and illustrate this subject. With some showing of variation and tendency to get away from the severity and narrowness of the rule in its application to cases of peculiar hardship, there have been a pretty steadfast agreement and adherence to the definition of the term “ cruelty,” as a ground for judicial separation found in the older cases.

The case of Close v. Close, 10 C. E. Gr. 526, in this court, clearly established the rule that extreme cruelty, as used in our statute, may be directed either to the safety of the person or to the health of the aggrieved party, and it is not necessary that it be actually inflicted, it is sufficient if it be reasonably apprehended ; that no rigid rule can be prescribed to define it, and each case as it arises must be determined by the sound discretion of the court, according to the circumstances which attend it. The earlier cases in our court are there cited and the weight of authority considered and decided. Vice-Chancellor Van Fleet, in Black v. Black, 3 Stew. Eq. 215, 221, follows this case, and vigorously states the rule of legal cruelty in its application to the facts of the case in hand.

When the present case was before the chancellor, in the application for alimony and expenses of the suit, in examining the right to such relief he considered the case made in the bill, and gave his views upon it as determining the action to be taken by him. Assuming the charges therein contained to be true, and legally proved, his opinion is so carefully and exactly expressed .that I would wish neither to qualify nor add to it. Putting aside the many minor facts of the case, he dealt with the strong peculiar feature of it, and characterized it and the treatment that followed it as cruelty which would entitle the complainant to relief. 'There are many vexatious things said and done, which appear in the proofs, that are of little weight and hardly relevant, except .as they portray the disposition of the defendant, and the character of the infirmity which he now invokes for his justification. 'These will be found in the opinion of the vice-chancellor, so far .as he thought necessary to repeat them. If this wife had been troubled with mere suspicions of criminality by her husband’s attentions to others, and her feelings wounded or jealously excited thereby; if he had treated their son in his childhood and manhood with petulance or passion and sent him from home, not because he was unruly, spoiled, false and disobedient, as he alleges, but from caprice and without regard to her affection for their only child; if he had accused her of falsehood because she did not return home at the appointed times, was mean in refusing her money when she asked for or needed it, and wished her to pay her personal expenses with the income or principal of about $3,000, received from her father’s estate, which was a small sum in comparison with the amount of his property and receipts from his business as a prosperous jeweler; if he had exacted or required attention and confinement by reading to him or walking 'with him, and disturbed her by his restlessness, wearied her by needful watching and care of him through the nights, or by other acts of like significance given in detail in the evidence— these would all be classed with the petty vexations and trials incident to the lives of many married women, often hard to bear, but for which the law affords no relief. The essential points of legal cruelty which will justify a separation, are found in none- or all of these facts combined. They had lived together as man and wife from November 7th, 1854, and might have continued to do so while they lived if nothing more had occurred. But on. or about July 18th, 1880, he charged his wife with incest and. criminal intimacy with their son, who was at that time living at home, was his father's partner in business and about twenty-six years of age. She testifies—

“That about two o’clock in the night he got up and dressed, and went about a block from the house, he said, for the purpose of getting a drink of water ; he returned, undressed and went to bed; immediately after retiring to bed, he rose partly up, held me firmly, taking me by the shoulders, and, with a very excited look, said: ‘ How long has this been going on ? ’ I said Richard, I don’t know what you mean ; ’ he said Yes you do, and forgive you I cannot,, if for life or death; ’ he said ‘ When I wrote you that letter things looked just like midnight darkness; I tell you I never will be well while Kendall [the son] remains at home; he must go to California, and you must tell him to do so;’ I was greatly alarmed, and went to the door and called our son; he went to Kendall’s room and bolted the door, sat down by his bed, and asked him, ‘ How long has this thing been going on?’ and he said to him that he did not know what he meant; he said ‘You know what [ mean;’ Kendall replied that he did not; shortly afterwards he unbolted the door and' went down stairs.” .

Tbe wife says that on his return to their room he told her why he said that. He said:

“ That the night Kendall came from Monmouth Beach, it was the 8th of July, that Kendall came to my room and locked the door, and he said there must be wrong-doing — improper relations — or the door would never be locked ;, I tried’to reason with him, and remove his unfounded suspicions, but I utterly failed; I told him that I was very glad that I could recall the circumstances, and I told .him that night that we had received a letter from our sister-in law —Mr. Smith’s sister-in-law; it was a family letter, and we had read it, and a. vportion of it was addressed to Kendall; I told him Kendall had not had an •opportunity of reading it, and I wanted him to read it that night, and he was •at the bureau reading the letter; at the extreme end of the hall the window was up, and there was a circulation of air which made the door swing backwards and forwards; at first I closed the door, but the catch was out of order, . and it would not remain closed, and then I locked it, only in consideration of Mr. Smith, for I was anxious to keep him asleep, and supposed he had re- • tired.”

But Mr. Smith was watching outside the door, as he afterwards told her. He said he did not believe her. The son corroborates her statement of the occasion for this charge. On the next morning he met his son in the sitting-room, and requested him to settle up the accounts in the store, as he wished him to go to California. He refused to go, and was upbraided for changing his mind after he had promised' to go. At that meeting the father charged the son with being in his mother’s room, and that criminal intercourse had taken place. He says he indignantly denied it, and told him that if any other man had said that to him he would not have given him time to draw another breath. Within about ten days after, Mrs. May, a sister of Mrs. Smith, and her son came to visit them. At the table, in their presence, Mr. Smith commanded his son not to look at his mother; he said they were lover’s glances, and he would not have them. He made the same vile charge to the sister, in effect, by asking her what she thought of the conduct of a mother and her son locked in the same room together.

This accusation is expressly charged in the bill, is answered and not denied in the defendant’s answer, but there repeated, as his honest belief at the time, and it does not appear that he has changed it. It is proved by the testimony of Mrs. Smith, her son Kendall, Mrs. May, and Frank J. May, her son, in part. It stands, therefore, without contradiction. In Bray v. Bray, 1 Hagg. 163, Sir John Nicholl said, in a case where a man accused his wife of incest with her uncle, and having a child by him, when the charge was admitted by him on an examination in court, thatit is not possible to conceive cruelty of a more grievous character (except, perhaps, great personal violence) than the accusation made by this husband against his wife.” It may not be within the legal definition of cruelty, as given in the foregoing cases, and it is not necessary so to hold in this case, for this charge was followed by personal violence to the wife. On the day when Mrs. May and her son were at dinner with them,, when Mr. and Mrs. Smith accompanied them to the door, Mr. Smith seized his wife by the shoulders and pushed her forcibly into the room, charging her with looking out of the window at Kendall. She says he used force enough to throw her to the other side of the room. On August 4th, when in his room dressing, Kendall says he heard a loud outcry down stairs; he went down; his mother and father were in the hall between the bedroom and the parlor. His mother said his father had struck her; he denied it, and ordered him up stairs, and he went, when his mother wished him to. She says Mr. Smith came in and heard her speaking to her son, who was on the third floor, while she was on the second, at the foot of the stairs. He came up with a bound—

“ And with both of his open hands struck me forcibly right upon my shoulders, so that I was lame for several days, and it prostrated me on the bed ; he-said ‘ How dare you speak to Kendall ?’ then he took hold of me, and I cried out with alarm, so loudly that I brought my son from the third story; I was very much frightened, and I tried to get out of my room ; he took me by the shoulders forcibly and pushed me back, but I succeeded in getting out, and when my son came down he asked me what was the matter.”

The father says that he only pushed her, and did not hurt her ; that she lost her balance and went on the bed; that he afterwards kissed her, and he heard nothing more of it until it was charged in this bill of complaint.

These two acts of violence, although not very hurtful, and not of much weight in themselves, yet taken in connection with the foul charge he had made, and the evident malice he was bearing against her and their son, assume the proportions of legal cruelty; This accusation and these acts of violence for such a cause, are harder for a faithful, virtuous and devoted wife to bear than the cursing and abuse of a rude or drunken husband, excited by violent passion, though accompanied by blows on the body, which inflict only external wounds. These are frequent grounds for divorce, why not the other ? Thomas v. Thomas, 5 C. E. Gr. 97; Kennedy v. Kennedy, 73 N. Y. 369.

After this, she says he watched her persistently from morning to night.

“ He nevei’ allowed me to go on the street; he never permitted me to leave my room alone; he would stand with his hand on the door-knob, as I was finishing my toilet in the morning, and wait until I passed out of the door.”

He went into her room when she was bathing, and says he saw no bruises on her body. He insulted her daily by such constant and indelicate watching. He took the fastenings off the basement door and windows; other fastenings were changed, and the door and stairs leading to the roof were altered so that a person could go on the roof. No explanation was given her of these acts. She was ordered by him to go up in the third story to sleep alone. She says she thought the fastenings were arranged so that some one could enter the house, and was afraid to go up stairs. He went out in the night to get a drink, as he alleges, and into the basement, leaving her in her bed, awake and frightened.

On August 27th he ordered the son to leave and find another place. She testifies that the servant would not remain if Kendall left, and she was afraid to remain alone. She feared bodily harm, and had feared it for some time, and could bear the strain no longer. She went on that day to her sister’s, in Paterson, where she has since remained.

Added to these circumstances, we have the further facts that in January, 1879, he had gone to Boston under great excitement about an election for directors of a bank in Newark, in which he was interested; that he had jumped from the window into the street and had thrown himself in the water of the bay, where he was rescued nearly drowned; that he was taken to a hospital, where his wife and son, summoned by telegram, found him; that he resisted their bringing him home, struck his son in the face at the depot, and threatened that they would rue the day when they took him home against his will, and that he would never forget it as long as he lived. He was taken to the asylum for treatment, under the advice of Dr. Dougherty, though his wife wished to keep him at home, and only yielded to the earnest opinion of tbe physician, that he could be better cared for at the asylum, until he recovered from his excited condition. He blamed her and his son for permitting him to be taken there, and charged them with doing it. On his return home, he inquired for his revolver, and always kept it in his room. In July, 1880, while he and his wife were at Long Branch, occupying communicating rooms, he alarmed her. She says:

“ He seemed to be very nervous and restless, and I would find him walking in his room in the middle of the night, and I think it was the first night I was there, I found him leaning over me, looking peculiar — bending over my bed ; as near as I can tell, it was twelve o’clock at night, and so he continued to walk back and forth for several nights.”

She says he had a very peculiar and unnatural expression, very alarming, and she was very much alarmed; and further, that after she returned home, and from the 16th of July until she left, on August 27th—

“ I slept very little; I was kept in a state of alarm and anxiety all the time by watching and caring for Mr. Smith.”

Notwithstanding all that had happened, she went back to him <on August 30th, to make some arrangement to return and remain at home, if. he would provide for her safety. He would have no servant, not the former servant, nor Kendall. He said if she returned, they should occupy separate rooms; he gave her no dinner, and refused to give her any money.

His answer to all these charges, through his counsel, is, that he is under an insane delusion about his wife and his son; that he is mentally excitable, of weak physical health ; that his wife never was in danger from him, nor did she fear him or have any reasonable grounds to fear; that she prefers her son to her husband, and has provided him with money, to become a rival to his father in business. As to her fear of him, this is opposed by her evidence, for she testifies that she was alarmed while with him, and afraid to live with him alone, without some one to protect her. She offered to return to him, if the servant whom she had had at the time she left, could be with her, without Kendall, but he refused. If she did not fear him while she remained with Rim, and was even willing to return to him, she showed, in my judgment, more devotion and courage than discretion, and if this court should say it is still her duty to go back and live ■alone with him, it could not be without the reasonable apprehension that she might be injured; and whether she suffered bodily harm from his insane delusion, hatred or mental excitability, the ■effect to her would be the same. His foul suspicion, which continues, would be both an insult and a menace to her, so long as .she remained with him, and within his power to hurt her. He is not wholly insane, according to the evidence. His is not a ■case of dementia, for which he is not responsible. In 1880, from April to July, just before he made this charge, he went .alone to Europe, and he has always transacted his business with more than ordinary prudence and ability. His answers on the witness-stand in this case do not indicate a want of intelligence as to his interests, or his position, except in the case of his charges against his wife and son of criminality; but they show liis willfulness, to which he evidently thinks his wife and son must always submit themselves.

In Hall v. Hall, 3 Sw. & Tr. 347, the ordinary said: “ The sources of the husband’s conduct are for the most part immaterial. Thus I have no doubt that cruelty does not cease to be a cause of suit if it proceed from ‘ violent or disorderly affections,’ .as is said in one case; or from ‘violence of disposition, want of moral control, or eccentricity,’ as said in another; or from liability to become excited in controversy,’ in the language of a third; but madness, dementia, positive disease of the mind — this is quite another matter. An insane man is like enough to be dangerous to his wife’s personal safety,, but the remedy lies in the restraint of the husband, not the release of the wife.” I think the chancellor was right in this case (6 Stew. Eq. 461) when he said .a distinction is to be made between a case of insane delusion, such .as this is alleged to be, and a case where the husband is shown to be insane generally. In the latter case the wife may obtain protection through appropriate proceedings to cause her husband .to be declared a lunatic. But how can this wife restrain her husband so that his delusion, suspicion or hatred of his son, and of her also, shall work her no harm ? Or who will say that there is not a reasonable apprehension that he may do her bodily injury if she shall return to him, as he demands, alone ? If this be her position, then she is entitled to the protection of the court and a judicial separation should be allowed her. As he has shown no sign of relenting or improvement in his feelings towards her from the time he made his accusation against her, the divorce from bed- and board should be perpetual.

The costs of the complainant in this court, and a counsel fee-of $300, will be allowed, and the costs and allowance for counsel below affirmed. The case will be remitted to the chancellor, that it may be proceeded in and alimony determined, by reference or-otherwise, according to the practice of the court.

The decree will be reversed.

Decree imanimousty reversed.*