"This is a bill filed by the complainant, under the statute, for a decree for the payment of alimony. The husband denies the material allegations of the bill, and files a cross-bill in which he seeks a divorce from his wife on the ground of desertion. The law is well settled—in fact, it is statutory—that, to entitle a wife to alimony, two elements must concur: First, the husband must, in the language of the statute, without any justifiable cause abandon his wife, or separate himself from her; and, second, he must refuse or neglect to maintain and provide for her.
"It is well settled that a husband's conduct toward his wife may be such as to justify the wife in separating herself from him. In such case the separation, having been occasioned by the husband, will be treated as his separating himself from her. The conditions, other than adultery, which will justify the wife in separating herself from her husband, are those which our statute has provided as sufficient cause to entitle the court to grant to the wife a divorce from bed and board, namely, extreme cruelty on the part of the husband. This is necessarily so; for a wife cannot be justified in assuming the right to live separate from her husband for causes which will not justify this court in granting to her the right to live separate from her husband. It follows, therefore, that when the wife, as in this case, separates herself from her husband and claims alimony, she must justify that separation by proof of extreme cruelty upon the part of her husband to the same extent as she would be compelled to prove if she were suing for a divorce from bed and board on the ground of extreme cruelty.
"Now, what constituted extreme cruelty on the part of the husband sufficient to justify a decree a mensa et thoro, or to justify the wife in a suit for alimony after separating herself from him, has been defined by our courts so frequently and with such accuracy that it should not be a question for dispute. I have before me a list of all, or nearly all, of the cases upon that subject, and it may be useful to briefly review the principal authorities, and summarize what I think may be said to be the settled condition of the law upon the subject at this time. The early cases were loath to hold that anything short of physical violence could amount to extreme cruelty within the intention of the statute, but I think it fair to say that that idea has entirely disappeared from the view of the judges who are called upon to administer this branch of the law. One of the earlier cases upon the subject, and the first utterance, I believe, of the Court of Errors and Appeals, was the case of Close v. Close, 25 N. J. Eq. 526. Justice Van Syckel, in delivering the opinion of the court in that case on page 529, uses this language:
"'Without attempting to give a definition of legal cruelty applicable to all cases, I think it may safely be said that where the husband has been guilty, or there is reasonable ground to apprehend that he will be guilty, of any actual violence, which will endanger the safety or health of the wife, or where he had inflicted upon her any physical injury accompanied by such persistent exhibition of ill feeling and opprobrious epithets as will endanger her health, or render life one of such extreme discomfort and wretchedness as to incapacitate her to discharge the duties of a wife, the decree of separation should be pronounced. Whether, in a case of extreme hardship, in the absence of any actual or apprehended physical injury, she will be remitted for the redress of her grievances to the domestic forum, must be left for adjudication when the case presents itself.'
"In the case of English v. English, 27 N. J. Eq. 579, Justice Scudder, in delivering the opinion in the court as found on page 585, uses this language:
"'The court must be satisfied that the wife is in danger of bodily harm if she goes back to him, or, to use the language in Close v. Close, 25 N. J. Eq. 529, that he has done and will continue to do such acts as will endanger her health or render her life one of such extreme discomfort and wretchedness as to incapacitate her to discharge the duties of a wife. It is not the question whether she will live more comfortably at her father's house with a liberal allowance of alimony, but whether she is released from her duty as a wife by the extreme cruelty of her husband, and the reasonable apprehension that it will continue. The principle which must decide this case does not affect these parties alone. It is of the utmost importance to all that these bonds should not be lightly severed.'
"The other case which I desire to quote on the point now under discussion is Black v. Black, as reported in 30 N. J. Eq. 215. In this case the Vice Chancellor (Van Fleet) on page 221 uses the following language:
"'The question, then, presented by this branch of the case, is this: Was the complainant justified in separating herself from her husband? The justification she offers is cruelty. She must show a case of extreme cruelty such as would entitle her to a decree of separation. The courts can know no middle ground. A wife must live with her husband, make his home hers, and give him her society and services, unless she can show reasons valid in law relieving her from her duty to him. To justify a decree a mensa et thoro, actual physical violence need not be
proved, but such conduct by the husband must be shown as will justify the court in believing that if he is allowed to retain his power over his wife, and she is compelled to remain subject to him, her life or health will be endangered, or that he will render her life one of such extreme discomfort and wretchedness as to incapacitate her to discharge the duties of a wife.'
"This view adopted by Vice Chancellor Van Fleet has been since incorporated in other cases, and is substantially, I believe, the accepted view to-day. In Weigand v. Weigand, reported in 41 N. J. Eq. 202, 3 Atl. 699, the same Vice Chancellor gives expression to the same views, namely, that personal violence is not the only form of extreme cruelty which will entitle a wife to separate herself from her husband. In Fred v. Fred, 67 N. J. Eq. 495, 58 Atl. 611, Vice Chancellor Bergen expresses the same views. Other cases in point will be found collected in the opinion in McVickar v. McVickar, reported in 46 N. J. Eq. 490, 19 Atl. 249, 19 Am. St. Rep. 422. The rule in this state may be considered settled as follows: That to justify a wife in separating herself from her husband physical violence need not be proved, but such conduct of the husband must be shown as will reasonably convince the court that her life or health was in danger, or her life rendered one of such extreme discomfort and wretchedness as to incapacitate her to discharge the duties of a wife, or that the conduct of the husband, if continued, would have brought about these conditions.
"The first question, therefore, that it becomes the duty of this court at this time to determine, is whether or not the separation of the complainant from her husband was justified according to the standard of the decisions to which I have just referred; whether the treatment of her husband was the cause of that separation; and, if so, whether that treatment amounted to extreme cruelty within the meaning that has been attributed to it by the cases to which I have referred.
"The testimony upon the part of the complainant, if accepted in its fullness, might justify an affirmative conclusion. If all that is claimed in her behalf be accepted, it is probable that her treatment at her home may have been of such nature as to justify her, in the preservation of her health, to take the radical step which she took in leaving her home; but that testimony and that claim, in practically all of its essential features, is without corroboration. The witnesses called to corroborate her in those matters have failed entirely to disclose any such condition of affairs at her home as would entitle a court to make an affirmative finding to the effect of extreme cruelty as claimed by complainant; and, in view of the contrary and opposing testimony that exists in this case, it is entirely manifest that no such finding can properly be made.
"Mrs. Nellie Howard testified that the husband used profane language to his wife. She nowhere claimed that she saw any physical violence or radical mistreatment. She saw marks on Mrs. Taylor's forehead, but does not know what occasioned them other than what Mrs. Taylor told her. Her testimony touching the incident when the wife stepped on her husband's corn is not sufficient to add any weight to the general claim upon the part of the complainant of a course of mistreatment by her husband. The only other misconduct on the part of the husband testified to by Nellie Howard...
