Wood v. Wood

• Decision Date: 30 June 1845
• Citation: 5 Ired. 674,27 N.C. 674
• Court: North Carolina Supreme Court
• Parties: REBECCA J. WOOD v. LORENZO WOOD.

5 Ired. 674

27 N.C. 674

REBECCA J. WOOD

v.LORENZO WOOD.

Supreme Court of North Carolina.

June Term, 1845.

Where husband and wife are living in a voluntary state of separation, the court may in some cases grant a divorce a mensa et thoro, for the cause of adultery committed during such separation.

But in no case will the court decree a divorce from the bonds of matrimony on the petition of a wife, who has separated herself from and lives apart from her husband on the ground of adultery committed since the separation--unless she alleges, and proves on the trial of issues under her petition, that she was compelled to sueh separation by the violent or outrageous conduct of her husband, in which case it shall be deemed that he separated himself from her.

If a wife petitions for a divorce from the bonds of matrimony, and alleges in her petition that she separated herself from her husband, she is estopped by this averment, and a verdict, that her husband separated himself from her, will not be regarded by the court, unless, upon a proper issue, circumstances of outrage or violence, justifying such separation, be found by a jury.

In a proceeding for a divorce, the issues submitted and the verdict found should be as specific and certain, as the facts alleged in the petition.

The cases of Whittington v. Whittington, 2 Dev. & Bat. 64, and Moss v. Moss, 2 Ired. 55, cited and approved.

Appeal from the Superior Court of Law of Davidson County, at the Spring Term, 1845, his Honor Judge CALDWELL presiding.

This is a suit instituted by Rebecca Wood, against her husband, Lorenzo D. Wood, for a divorce a vinculo matrimonii, for the causes of cruelty and maliciously turning her out of doors, and adultery. The parties were married in 1836, and lived together until October, 1840, when the petitioner left her husband, and went to reside with her parents, at some short distance off, and has remained there ever since. During heir cohabitation, they had issue two children. The parties appear to have been in much the same rank of life: the petitioner being the daughter of a respectable man, the sheriff of Davidson county; and the defendant a practising physician.

The petition was filed in March, 1843, and charges, that, very soon after the marriage, the husband became addicted to intoxication, and was in that state two-thirds of the period they lived together: that very soon he became unkind, and his treatment less and less affectionate, until it became cruel and barbarous in the extreme, and so continued for more than three years immediately preceding their separation. The petitioner then states, that the defendant frequently struck her with his fist, and choked her until she would fall, and, during her several pregnancies, that, with a knife drawn in his hand, he often threatened to kill her; and, that upon one occasion in the last month of her pregnancy, he swore he would kill her, and seized her, and the petitioner states she believes he would have done so, had she not with much difficulty escaped and saved her life by staying in the fields all night: that he often terrified her by threats of taking her life with a large dissecting knife, and compelled her to fly for safety and conceal herself by lying out for a day and night at a time in winter and summer, exposed to snow and rain: that upon two occasions she was dangerously ill, and he attempted to poison her, as she believes, under the pretence of giving her medicine--at one time administering some article through a reed, in order the better to conceal it; and at the other, mixing up a large quantity of some drug in a bowl, and forcing her to take repeated doses through the day, although she could not do so without being made deadly sick; which latter drug she charges to have been sugar of lead or arsenic. The petition states several other specific acts of gross violence and personal indignity; and that, during all that time, the petitioner demeaned herself as a dutiful, affectionate, and faithful wife: but that, finding that, instead of reformation on the part of the husband, he treated her worse and worse, and that her life was every moment in danger, and her condition intolerable, she was at length “compelled by his conduct to a separation from him, and was forced, for safety, to go to her father's house, where she had resided separate from her husband for more than two years.”

By an amendment at September, 1843, the petition states, that, during the time of their cohabitation, the defendant, without her knowledge, committed adultery with several women, as she has since been informed. And that during their separation the said Lorenzo D. has lived in adultery and had adulterous intercourse with one E. D. P. at New Salem, in Randolph, in July 1841, and through the summer of that year. “And also he had adulterous intercourse with one Rebecca Watson in Randolph County, in March 1842, and afterwards through that year, and continually afterwards up to that time, at the house of the said Rebecca Watson in Davidson County.” The petition further charges adultery with two other named women, besides adultery with divers women, whoes names the petitioner alleges herself unable to state.--And it charges that the petitioner has at all times lived a chaste and virtuous life, and that she has not admitted her husband to conjugal embraces after she knew of his criminal acts of adultery, nor since she separated from him as aforesaid.

The prayer is for a divorce from the bonds of matrimony and to have the marriage dissolved, and proper alimony allowed.

The answer admits the defendant's belief, that the petitioner would have made an affectionate and prudent wife, if she had been left to herself, and her parents had not officiously and injuriously intervened, and alienated her affections and confidence from her husband, and induced in her a wish to leave him and return to them. The defendant states, that in consequence of that state of things, his feelings were wounded, and his temper, no doubt, more irritable than it would otherwise have been, and that there was not that harmony of sentiment and cordiality between them, nor concert of action, needful for the happiness of married life. But the defendant, positively denies, that it was in any degree his fault, or that he treated his wife with insult or indignity of any kind, much less with violence or an offer or threat of violence. He denies generally and particularly every overt act of that kind stated in the petition; or that the petitioner was ever under the necessity of leaving his house for fear of him, or that she ever in fact left it and staid out of doors all night or at night at all, or at any other time. The defendant denies, as a gross and unfounded aspersion, that he attempted to poison the petitioner, and says that he gave her such medicines as were proper in the treatment of diseases under which she at those times labored: the one article being nitric acid diluted and administered through a tube, in order to avoid injury to the teeth, as a tonic, when she was in a state of debility and also as a remedy for salivation: and the other being tartar emetic given in broken doses, to produce long continued nausea and relaxation of the system during fever, and not sugar of lead or arsenic, either of which would have produced death.

The defendant denies the several charges of adultery, and declares that he does not know several of the females, with whom criminal conversation by him is alleged. He says, that among other unhappy effects of the poison, infused into his wife's mind by her parents against him, was jealousy, and that he was often unable to practice his profession among respectable females, on account of her injurious suspicions and imputations: And he avers, that, during their cohabitation, he was faithful to his wife and that he hath not lived in adultery since their separation.

The answer further states “in regard to the prayer of alimony, that, more than two years since, by request of mutual friends, the petitioner and defendant agreed to live separately, and this defendant conveyed to trustees more than one-half of his property for the separate use of the petitioner and the maintenance of herself and the child which he permitted her to retain.”

Upon issues to a jury it was found, that the petitioner had been a citizen of this State for more than three years next before the filing of the petition; that ...