(61 South. 879.)

No. 19,335.

#### GASTAUER v. GASTAUER.

(April 28, 1913.)

*(Syllabus by the*Court.J

1. Divorce (§ 12*) — Grounds — Separation prom Bed and Board.

Where the husband threatens the life of the wife, publicly defames her, drinks habitually to intoxication, and is guilty of other excesses, such as breaking up their furniture, the wife is entitled to a separation a mensa et thoro.

[Ed. Note. — Eor other cases, see Divorce, Cent. Dig. §§ 22, 51; Dec. Dig. § 12.*]

2. Divorce (§ 108*) — Plea in Reconvention —Evidence.

Where in a suit by the wife for separation mensa et thoro, the husband, reconvening, prays for _ a divorce a vinculo matrimonii, the charge relied on should be specific, and the evidence should be confined to the charge as made.

[Ed. Note. — Eor other cases, see Divorce, Cent. Dig. §§ 349-352; Dec. Dig. § 108.*]

Appeal from Civil District Court, Parish of Orleans; Ered D. King, Judge.

Action by Sophie Gastauer against George Gastauer for separation from bed and board. Judgment for defendant, and plaintiff appeals.

Reversed, and judgment ordered for plaintiff.

George J. Untereiner, of New Orleans, for appellant. Woodville & Woodville, of New Orleans, for appellee.

Statement of the Case.

MONROE, J.

Plaintiff sues her husband for separation from bed and board, alleging an attempt upon her life, cruel treatment in other respects, habitual intemperance, and public defamation. She also prays that she be awarded the custody of her minor children, and that defendant be enjoined from alienating any property registered in the conveyance office of this parish in her or his name; and a preliminary injunction to that effect was. issued, but was subsequently modified so as to permit defendant to dispose of property inherited by him from his mother. Defendant denies the truth of plaintiff’s allegations, and, reconvening, prays for a judgment of divorce upon grounds rather vaguely alleged by reference to an answer filed by him in another suit. There was judgment in the court a qua rejecting both demands, and plaintiff alone has appealed. Defendant has not answered the appeal, nor has he appeared in this court, in person or through counsel.

*944Opinion.

[1,2] A dozen or more witnesses were called by plaintiff, and the consensus of their testimony is to the effect that for some time prior to the date at which defendant ceased to live with her and their children, which was, perhaps, a year or two before this suit was filed, they lived very unhappily, that he threatened her life (more than once), defamed her publicly and frequently in the vilest manner, drank habitually to intoxication, and on one occasion smashed up the furniture in their house. .On the other hand, the testimony introduced in support of the re-conventional demand (which we think should have been excluded, in view of the lack of specification in the allegations of the petition) fails utterly to establish the charge as made. There is no evidence in the record concerning any property which the defendant might dispose of to the prejudice of plaintiff, and her property rights, such as they may be, will be reserved.

The judgment appealed from is set aside, and it is now ordered that there be judgment in favor of the plaintiff, Mrs. Sophie Gastauer, and against the defendant, George Gastauer, her husband, decreeing a separation from bed and board between them, awarding plaintiff the custody of the minor children, issue of the marriage, and reserving all her property rights. It is further decreed that the reconventional demand set up by defendant be rejected, and that he pay all costs.