The National tribune., 1903-11-26

i tai relations with brutal, immoral, eX
prison convict he is not relieved or in any
manner excused for his subsequent bru
tai treatment of his wife. That he was
guilty of such cruelty as would justify a
divorce upon that ground alone is fairly
established by a preponderanee of the ev.
idence in the case. If his conduct was
such as to cause his wife to believe hei
life. health, or person TO be in jeopardy
| without fault or sufficient provOcation o..
i her part, she.-was legally justified in hel
separation from him and her refusal to
longer cohabit with him.
AS stated by Richardson. c. j.. in
the case. of Poor V. Poor Is n. H., 307l
% Am. Dec 6G4-610:
" In the judgment of the law, any will
ftil misconduct of the husband. which en-.
dangers the life or the health of the wife;
| which ex:toses her to bodily hazard and
intolerable hardship. and renders cohahita-
ton unsafe. is extreme cruelty. And in
order to amount to such cruelty it is not
necessary that there should be many acts.
Wherever force and violence, preceded by
deliberate insult and abuse, have been
once wantonly and without prOvocation
used. the wife can hardly be considered
as safe. Citing Kent Com, 1876; Smith
V. Smith. l Eng. Ecc.. 232; French V.
French q Mass. $3.50: Paige. 5O2 G. n.
H., 1866; Hume V. Hume u Eng. Fec,
20S).
ARD at this day the moral sense of
the community revolts at the idea that II
husband may inflict personal chastise-
ment. even for the most outrageous con-
| duct
The foregoing decision was rendered in
1886. and it is not believed that the moral
sense of the community has degenerated
since that time.
1.-The evidence fails to disclose any IN
4 fol, I.f,n ant Inc, ha of
claimant. She is not shown to have been
the aggressor in a single instance. The
special examiner reports that
| Claimant bears good reputation for
sObriety aud morality among her people.
She is an illiterate woman and if her men
tai faculties are blunted it may be the
result of poverty, trouble, and family
contentious
| "If, as indicated by the testimony of the
eldest son. she. when abused by her hus
band, retorted in kind. it is not charged
wholly against her. He appears never To
have suffered any physical violence at her
hands. but. on the contrary, when any do
nestle difficulties arose he appears to
have been the unjustifiable aggressor His
unmanly, cruel, and abusive conduct to
his wife is wholly without excuse. For
much less cruelty than is shown in this
case. she would have been legally justified
in leaving her husband and refusing to re
new marital relations.
Cruelty may be defined, in general
terms TO be any conduct in one of the mar
ried parties which furnishes reasonable
apprehension that the continuance of the
cohabitation would be attended with bod
lily harm to the other. Morris V. Morris
"a Cal, 76: 73 Am. Dec. 615 and notes.;
Malone V. Malone Q9 Cal, 626; 81 Am.
Dec, 81 and notes.; SOuthwick V. South
wick {97 Mass, 327: SO Am. Dec. 95 and
notes) Cooper V. Cooper Q7 Mich, 5O2;;
81 Am. Dec, 1S2 and notes..
'.In the case under consideration the sep
aratiOn is for cause, and this case is to be
distinguished from those cases where the
separation is by mutual consent, in which
latter class of cases refusal by either
party. to renew the suspended matrimo-
nial relation on the bona hde request of
the other, constitutes the refusing party
the deserter. Where, however, as in this
case, the facts legally justify the wife in
leaving her husband and the matrimo-
NAL home, she is also legally justified in
refusing to renew the suspended marital
relation without becoming the deserter.
Warner " Warner GA Mich, 492).
"The Department is of the opinion that
the preponderance of evidence in this case
fairly establishes the fact that claimant
was legally justified in leaving her hus-
band and their matrimonial home with the
with him again by reason of his cruelty
and abuse.
Where the husband, by his cruelty
and abuse, drives his wife from the mat
rimonial home, it is to he presumed that
he intended to effect separation by his
own wrongful and illegal acts, and this
presumption is not ontweighed or over
come by his subsequent offers to resume |
the marital relation with his wife, or by |
offering her financial support The one
who Intentionally drives the other away |
is the deserter. Usothery V. Rothery, IL
p. D.. 1871; Martin v. Martin, 13 2.
D.. 430; Barnett V. Barnett, q Ind. App, |
ALL
'The only remaining question to be con- |
sdered IS whether claimant is in necessi-
tous circumstances within the meaning
Of the act of March 3, 1S99 and whether
her acceptance of pensioners offer would
have relieved her of her necessitous con-
dition.
while claimant is older than pensioner,
yet their earning ability appears to be
about equal. She is in possession of
property worth. according to pensioners
estimate, a rental value Of $3 per month
Claimant and other witnesses, however.
estimate it at but 81 per month, and this
would appear fair rental value for prop
erty which cost less than $500. Her year
ly income, therefore, from this property
would be equivalent to $4S.
.PensioDer is in receipt of an annual
income of S204 from his pension His
offer to Mr.. Cobb, the Oyerseer of the
poor, of $1.25 per week for her support
was but temporary, and there is reason
for holding, as contended by claimant, that
she should not be required to accept
aid through the Overseer of the poor. The
cash value of her life lease hold estate, in
view of her age, is but slight.
I'm the case of Dustin V. Dustin 13 p
D., 10. the pensioner was 81 years of
age, not wholly incapaciated for earning
his support by manual labor, and was in
from his pension. His wife was So years
of age. in poor health, with one minor
child dependent upon her for support. She
was possessed of real estate assessed at
$500 cash valuation. and personal prop
erty valued at about $50.
"The Department after stating that no
absolute rule could be laid down which
would be alike applicable to all cases,
and after referring to the authorities bear
ing upon the question of necessitous cir
cumstances, held that she was in neces-
sitous circumstances within the meaning
of said act of March 3, 1899, citing de-
partmental decision in the case of Pierce
v. Pierce az p. d., 412). See also
Parker V. Parker Q3 =. d.. 233) and
DOherty v. Doherty (ibd., 3O2).
I'm harmony with the foregoing decis-
ions, the Department is of the opinion that
the evidence in this case shows that claim
ant is in necessitOus circumstances within
the meaning of the act of March z 1900 |