O'Connor v. O'Connor

• Decision Date: 24 November 1891
• Citation: 13 S.E. 887,109 N.C. 139
• Parties: O'Connor v. O'Connor.
• Court: North Carolina Supreme Court

13 S.E. 887

109 N.C. 139

O'Connor v. O'Connor.

Supreme Court of North Carolina

November 24, 1891

Appeal from superior court, Guilford county; Robert W. Winston Judge.

Action by Mary O'Connor against Thomas O'Connor for divorce. Judgment for plaintiff. Defendant appeals. Reversed.

Statement by the Court. Twelve issues were submitted to the jury, being those tendered by defendant and adopted by the court. The issues and responses were as follows: "(1) Were the plaintiff and defendant lawfully married? Answer. Yes. (2) Have plaintiff and defendant resided in this state for two years next preceding this action? A. Yes. (3) Did the defendant, in 1878, violently choke, beat, and bruise the plaintiff, at the time she was pregnant? A. Yes. (4) Did the defendant, in September, 1884, strike the plaintiff with a gun? A. Yes. (5) Did the defendant, about the 15th day of October, 1889, violently throw the plaintiff against the door, hurting her head? A. Yes. (6) Did the defendant, on Thanksgiving day, 1890, drag plaintiff out of her chair, and attempt to throw her out of the house? A. Yes. (7) Did the defendant call plaintiff vile and opprobrious names, accusing her of a want of chastity, in the presence of her children and strangers? A. Yes. (8) If defendant did call plaintiff vile and opprobrious names, accusing her of a want of chastity, did he do so under provocation by plaintiff, and in a sudden fit of anger? A. Yes. (9) Was the notice in the newspaper made with intent to insult plaintiff, and bring her into humiliation and contempt? A. Yes. (10) Did defendant bring a strange woman in his house, and give her the management and control of his household affairs, to the exclusion of the plaintiff? A. No. (11) What amount of money if any, has plaintiff let defendant have of her separate estate, and which is not repaid? A. $100. (12) Does the plaintiff now reside in her husband's dwelling because she has no means to support herself elsewhere, and no home to go to or friends to aid her? A. Yes." The plaintiff, in her own behalf, testified substantially to the several acts of cruelty, violence, and mistreatment on the part of the defendant, as set out in the complaint, and she further testified that each and every of the said acts and doings of the defendant were without cause or provocation on her part. Plaintiff also placed in evidence a copy of the Daily Workman containing the publication referred to in the complaint which was identified and admitted as a newspaper published in and circulated at the time, as alleged. The defendant testified in his own behalf, and denied specifically each one of the several allegations of cruelty, violence, and mistreatment alleged in the complaint, and testified to by plaintiff, except he admitted that he did charge plaintiff with a want of chastity, but that he did this in the heat of passion, at a time when plaintiff had crossed and provoked him. He also admitted publishing the plaintiff in the Daily Workman, but said that he apprehended that plaintiff would make bills or get money, as she had declared her purpose (as witness stated) to do this, and leave, and go back north to her former home. Five of the children of plaintiff and defendant, three males and two females, all grown, and all residing with the defendant, were introduced by defendant as witnesses in his behalf, and each gave testimony tending to corroborate the defendant. After the verdict, the plaintiff by leave of the court, amended the complaint by inserting in article 4, before each of the several allegations of cruelty, violence, and mistreatment the words, "without cause or provocation on her part." Defendant excepted to these amendments. Both parties then moved for judgment,-the plaintiff for a decree of separation and for alimony, the defendant for judgment in his favor on the complaint and findings of the jury. Judgment was entered for plaintiff. From the refusal of the court to grant his motion the defendant appealed.

Where a wife demands a divorce a mensa et thoro on the ground of personal violence, she must explicitly show in her complaint that the violence complained of was not due to any provocation on her part.

Dillard & King and Jas. T. Morehead, for appellant.

Jas. E. Boyd and R. M. Douglas, for appellee.

Avery J.

It is true, as insisted by counsel in the brief, that a husband who brings his action for divorce from the bonds of matrimony is not required to "purge his conscience" by negativing, in his complaint, the possibility of unfaithfulness on his part, (Edwards v. Edwards, Phil [N. C.] 534; Steele v. Steele, 104 N.C. 631, 10 S.E. Rep. 707;) but when the wife demands only a divorce a mensa et thoro, on the ground that the husband, by personal violence, has made her life intolerable and her condition burdensome, she must state specifically in her complaint what, if anything, was said or done by her just before or...