In this case I am constrained to differ with Mr. Justice Pope in the conclusion which he has reached as to one of the questions involved. Before proceeding to state the grounds of my dissent, it may be as well to state, briefly, the history of the case. While there is much conflict in the testimony as to the facts upon which one of the main issues turns, there are certain facts, as to which there is practically no dispute, which may be stated as follows: On the 8th of April, 1896, the defendant was married to the plaintiff, who was an adopted daughter of Levi Shroyer and his wife, who having no children of their *Page 443 own, took the plaintiff, when she was about four years old, into their family and treated her as their own child. Both Daniel Wise, the defendant, and the said Levi Shroyer came originally from the State of Ohio, where they both enlisted in the Federal army, during the "War between the States," joining the same company, and served together as soldiers in that army. At what time Levi Shroyer removed to this State, after the war ended, does not appear, but the defendant left Ohio to attend the Atlanta Exposition, and upon his return came by Columbia for the purpose of paying a visit to his army comrade, who had settled near the city of Columbia. There he made the acquaintance of his wife, the plaintiff, and after the lapse of some four or five months he married her, with the full consent of her adopted parents — the Shroyers — and went to live on a place which he had bought, called the Sawyer place, about one-half of a mile from the residence of the Shroyers. Some time in November following — the 16th of that month, as stated by Mrs. Shroyer in her testimony — Wise left for Ohio, whether on a temporary visit or for a permanent removal, is one of the matters in dispute. It seems that while Mrs. Wise was not willing to go with her husband, she evidently consented to go, for on the morning Wise left she was at the depot, with her trunk, prepared to take the train — though for some reason, as to which there is a conflict of testimony, she, at the last moment, declined to go, and returned either to her former home or to the Shroyers, where she remained until her husband returned from Ohio, as will be hereinafter stated. Very soon after Wise reached Ohio, to wit: on the 23d November, 1896, he instituted proceedings for a divorce, charging his wife with adultery committed with a young negro fellow, named Thomas Thompson, and with others. But in just about a month afterwards, to wit: on the 24th of December, 1896, he withdrew the case, and made the public confession, in writing, that the charges were unfounded in fact, a copy of which is set out in the opinion of Mr. Justice Pope, and the same was published in the Ohio newspapers. Not long *Page 444 after this — some time in January or February, 1897 — the 16th of January, Mrs. Shroyer says in her testimony — Wise returned from Ohio, and went immediately from the train to the house of Shroyer, where he found his wife; and after seeking pardon for his offense in bringing the suit for divorce, the parties apparently became reconciled, and Wise went with his wife to the Collins place near by, which he had rented until his house on the fifteen acre tract referred to in the complaint was finished, and then removed to that house, within about 100 yards from the residence of the Shroyers. There they continued to live together as man and wife until about the 3d of February, 1898, when Wise left and went to Columbia to live in rooms at the Congaree Hotel. In the meantime, to wit: on the 3d of June, 1897, Mrs. Wise gave birth to a child. It seems that Wise attempted to persuade his wife to go with him to live in Columbia, and evidently supposed she had consented to do so, as he sent a carriage to take her to the city and a wagon to remove her things; but at the last moment she refused to go. On the 16th of February, 1898, this action was commenced, for the double purpose of obtaining a decree for the specific performance of an agreement which she alleges her husband entered into, to convey to her the fifteen acres of land above referred to, and also certain articles of personal property, a list of which is filed, as an exhibit to her complaint, and also for the purpose of obtaining a decree for alimony.
The case was heard by his Honor, Judge Buchanan, who rendered the following decree: "After a full consideration of the testimony in this case, and the arguments of counsel, my conclusion is that the plaintiff has not sustained the allegations of her complaint by the preponderance of the testimony. On the contrary, I am convinced that the defendant has not deserted his wife, but she him; and moreover he has offered, in good faith, I think, to receive her back, which will prevent a decree for alimony. Hair v. Hair, 10 Rich. Eq., 163. Nor do I find in the case any legal testimony which would justify the Court in directing the defendant to convey *Page 445 the land mentioned to his wife. Therefore, she is not entitled to any of the relief demanded by her; but as the testimony shows that she has taken and retained possession of the land described in the complaint, her rights to which she submitted to this Court for adjudication.
"It is ordered and decreed, that defendant have leave to enter up judgment of dismissal of complaint, with a direction to the plaintiff to surrender to him, without future waste, the possession of the lands described in the complaint."
From the judgment entered on this decree the plaintiff appeals upon the several grounds set out in the opinion of Mr. Justice Pope. Inasmuch as so much of the decree of the Circuit Judge as denies to the plaintiff the right to specific performance of the agreement alleged in the complaint, is affirmed in the leading opinion, to which I assent, that question may be dismissed from further consideration here. My remarks, therefore, will be confined exclusively to the question whether the Circuit Judge has erred in denying to the plaintiff her demand for alimony.
It may be said to the credit of the people of this State that cases of this character are of very rare occurrence. For upwards of half a century our books of Reports disclose but three cases of that character; and even prior to that time but few cases of the kind are to be found. The law, however, upon the subject seems to be well settled. See Rhame v.Rhame, 1 McC. Ch., 197; Hair v. Hair, 10 Rich. Eq., 163, and Briggs v. Briggs, 24 S.C. 377. The last case upon the subject is Smith v. Smith, which is twice reported in 50 S.C. 54, and next in 51 S.C. 379. But as both of those appeals involved questions of pleading and practice in alimony cases, which are not involved here, they do not throw any light upon the questions here; though it may be stated that in the first of these appeals — the case ofRhame v. Rhame, supra — which will be considered, is cited with approval. There is, however, a fourth case which came before the Court of Appeals during the last half century —Thompson v. Thompson, 10 Rich. Eq., 416; but as that case *Page 446 deals rather with the circumstances which should affect the amount of alimony to be allowed, after the right to alimony is established, it need not be considered here.
In Rhame v. Rhame, supra, Mr. Justice Nott, in delivering the opinion of the Court of Appeals, after saying that, in England, alimony is allowed only where a separation is decreed, and that although our courts of equity have not the power to grant divorces, yet as the two subjects, "divorce" and "alimony," are inseparable companions in England, we must look to the causes of divorce, to ascertain the grounds on which alimony will be allowed, proceeds to cite the following language used by Sir William Scott (afterwards Lord Stowell), in the case of Evans v. Evans, 1 Hagg. Rep., 39, which was an application for a divorce on the ground of cruelty: "In the oldest cases of this sort which I have had an opportunity of looking into, I have observed that the danger of life, limb or health is usually inserted as the ground on which the Court has proceeded to a separation. This doctrine has been repeatedly applied by the Court in the cases that have been cited. The Court has never been driven off this ground. What merely wounds the mental feelings is, in few cases, to be admitted, where they are not accompanied with bodily injury, either actual or menaced. Mere austerity of temper, petulance of manner, rudeness of language, a want of civil attention and accommodation, even occasional sallies of passion (if they do not threaten bodily harm), do not amount to legal cruelty." And again he cites with approval the language used by the same distinguished Judge, in Oliver v. Oliver, 1 Hagg. Rep., 364, where he says: "Words of menace, importing actual danger of bodily harm, will justify the interposition of the Court, as the law ought not to wait until the mischief is actually done. But the most innocent and deserving women will sue in vain for its interference for words of mere insult, however galling."
In Hair v. Hair, 10 Rich. Eq., 163, Dargan, Ch., in delivering the opinion of the Court, after citing and commenting with approval upon the above cited case of Rhame v. Rhame, *Page 447 uses this language: "In pursuance of the decisions and practice of the Ecclesiastical and Consistorial Courts of England, in South Carolina alimony is granted for bodily injury inflicted or threatened and impending, amounting to thesaevitia of the civil law, which may be defined to be personal violence actually inflicted or menaced, and affecting life or health. Alimony is also granted in South Carolina for the desertion of the wife by the husband. To these may be added a third class of cases, in which, though the husband has inflicted or threatened no bodily injury upon the wife, yet practices such obscene and revolting indecencies in the family circle, and so outrages all the sentiments of delicacy and refinement, characteristic of the sex, that a modest and pure-minded woman would find these grievances more dreadful and intolerable to be borne than the most cruel inflictions upon her person." And finally, in concluding this branch of his opinion, the learned Chancellor says: "Except in cases embraced within the three classes above commented on, I am not aware that a suit for alimony has been sustained in South Carolina." The case of Hair v. Hair is cited with approval in Briggs v. Briggs, 24 S.C. 377, which is the last case which I have been able to find in which the Courts of this State have considered a case of alimony on its merits — the case of Smith v. Smith, supra, as has been said, turning only upon questions of pleading and practice.
It may, therefore, be safely said that, in this State, alimony will not be granted except for one or more of the three causes stated by Dargan, Ch., in Hair v. Hair, supra, which may be briefly recapitulated as follows: 1st. Desertion of the wife by the husband — without just cause, I would add. 2d. Where the husband inflicts upon his wife or threatens her with bodily injury, amounting to the saevitia of the civil law, which is defined "to be personal violence actually inflicted or menaced, and affecting life or health." 3d. Where the husband practices such obscene and revolting indecencies in the family circle, and so outrages all the sentiments of delicacy and refinement, characteristic of the sex, that a modest *Page 448 and pure-minded woman would find these grievances more dreadful and intolerable than the most cruel inflictions upon her person. I do not exactly understand upon which of these three grounds Mr. Justice Pope bases his conclusion that the plaintiff is entitled to alimony; and, therefore, they must all be considered.
1st. As to desertion. There seems to be two occasions on which it is claimed by the plaintiff that she was deserted by her husband. First, in November, 1896 — about seven months after the marriage — when the husband went to Ohio; and next, on the 3d of February, 1898, when the husband went to Columbia and took up his home at the Congaree Hotel. I agree with the Circuit Judge that it is shown by the preponderance of the evidence, that on both of these occasions, so far from the husband deserting his wife, she deserted him. It must be remembered that, under the law as it stands here, as well as everywhere else, so far as I am informed, the husband has an absolute right to establish his domicile or place of residence wherever he pleases, either with or without the consent of his wife; and it is equally her duty to go with him or follow to the place of residence chosen by him. As is said by Dargan, Ch., in Hair v. Hair, supra, at page 175: "Certainly the husband, by our laws, is lord of his own houshold, and sole arbiter on the question as to where himself and family shall reside." And again, on the next page he uses this language: "The husband has the right, without the consent of the wife, to establish his domicile in any part of the world, and it is the legal duty of the wife to follow his fortunes wheresoever he may go." As to the first alleged desertion, it seems to me that it is shown by the clear preponderance of the evidence that the defendant desired his wife to go with him to Ohio, and that she had actually consented (reluctantly, it may have been,) to go with him, and did go to the depot in Columbia, with her trunk, for that purpose; but after reaching the depot something occurred, as to which there is much conflict of testimony, which induced her to decline going with him, and she *Page 449 returned to her adopted parents, the Shroyers. I do not propose to go into any detailed discussion of the testimony in this case, as that would serve no useful purpose; and will confine myself to a statement of the general impression which has been made upon my mind by a careful reading of the testimony, covering about three hundred typewritten pages. Whatever differences of opinion may once have existed as to the rule which should govern where an appellant, as in this case, asks this Court to reverse the findings of fact by the Circuit Judge, in an equity case, it must now, since the decision in Finley v. Cartwright, 55 S.C. 198, be regarded as settled, "That this Court may reverse a finding of fact by the Circuit Court when the appellant satisfies this Court that the preponderance of the evidence is against the finding of the Circuit Court." So that the practical inquiry in this case, in which the Circuit Judge has found the contested issues of fact in favor of the defendant, or, to use his own language: "That the plaintiff has not sustained the allegations of her complaint by the preponderance of the testimony," as every plaintiff is bound to do, is, whether the appellant has satisfied this Court that the findings of fact by the Circuit Court are against the preponderance of the evidence. It will thus be seen that both in the Circuit Court and the Supreme Court, the burden of proof is upon the plaintiff — in the former to sustain her allegations by the preponderance of the evidence, and in the latter to satisfy this Court that the findings of fact by the Circuit Court are against the preponderance of the evidence.
In view of the direct conflict of testimony upon most of the material issues of fact, it may throw some light upon the question as to where the preponderance of evidence lies, to look at some of the undisputed facts. Here was an old couple, Levi Shroyer and wife, who having no children of their own had adopted the plaintiff, and thereby assumed the obligations of parents to their child. When this girl, not more than seventeen or eighteen years of age, was sought in marriage by the defendant, who was a widower approaching *Page 450 the age of sixty years, the Shroyers not only offered no opposition to the marriage but manifestly encouraged it. Why? The testimony shows that they supposed the defendant was a person of large means, and their conduct indicates that their motive was to obtain for their daughter, and perhaps, incidentally, for themselves, a share of his large property. But very soon after the marriage, finding that their expectations, based upon what they supposed to be the handsome estate of the defendant, were unfounded, they commenced a systematic effort to bring about a separation of the newly married couple. The first cause of a quarrel or dissension between this husband and wife is stated to have occurred in a very short time — only three weeks after the marriage — and the cause of that quarrel, as stated by the plaintiff, who, I must believe, acted throughout under the influence of the Shroyers, is of such a character as to render such statements not only absolutely incredible, but absurd on its face. That cause, as she stated, was that her husband found fault with her because she had not conceived. How was it possible for her or any one else to ascertain the fact within the short space of three weeks after marriage, it is impossible to understand. It is absurd to suppose that this man, who had been previously married and had been the father of several children, could have been supposed to know or could have pretended to know in so short time after marriage, whether his wife had or had not conceived; and the statement that he made that a cause of quarrel with her, is so absurd as to render that statement utterly incredible. Then, too, the statement that he had proposed to his young wife, about two months after the marriage, that she should have sexual intercourse with two negro boys, and the reason he is alleged to have given for such a foul proposition, expressed in language too vile and obscene to be repeated here, is utterly incredible, in view of the testimony as to the character which all his neighbors give him; even Levi Shroyer himself saying that up to the time of his marriage he was one of the finest gentlemen he ever knew — and he did know *Page 451 him well, having served with him in the Federal army in the same company. So, too, the testimony of the Shroyers as to the fact that the defendant was in the constant habit of cursing and abusing his wife in the vilest language, and in tones so loud that he could be heard at their house, distant about 100 yards, and yet not a single neighbor can be produced who ever heard him using such language when passing along the road, which was about sixty feet from the house. On the contrary, every neighbor and every visitor at the defendant's house, who was examined — and there was quite a number of them put upon the stand — with the exception of the Shroyers, testify that they never on any occasion heard the defendant use either profane or vulgar language. Even the colored witness, Nelson Thompson, who seems to have been seen about the premises a good deal, and appears to be much relied upon by the plaintiff, is forced to admit on his cross-examination that he never heard the defendant use either profane or vulgar language, and that defendant always treated his wife kindly; and that she was always cross to her husband when she returned from visits to the Shroyers. Again, as to the charge that defendant did not supply his wife with sufficient food and clothing, testified to by the Shroyers; it is completely overthrown by the testimony of the neighbors, some of whom took meals at defendant's house and always found the table well supplied, and that Mrs. Wise always seemed to be dressed well. This is supported by the testimony of several merchants in Columbia, who sold defendant supplies every week amply sufficient for his family, and some of them sold him goods suitable for ladies' wear. Also by the testimony of the two motormen on the street cars, who frequently saw plaintiff on the cars and that she was always well dressed, and one of them testifying that she had shown him a gold watch which she said her husband gave her, saying that she had married an old man, who was very good to her, giving her whatever she wanted. Also by the testimony of the witness. Neeley, who said he worked for defendant about a *Page 452 month, took his meals at defendant's house, found the table well supplied, and that defendant always treated his wife kindly. It is true, that plaintiff's standing witness — the negro, Nelson Thompson — was put up in reply to contradict Neeley, and also to impeach the character of the motorman who testified as to the gold watch, by saying that he had heard that this man was discharged for stealing car fares, though no officer of the street car company was put up to sustain any such charges, and no other witness except this negro, Nelson Thompson, was examined to impeach the testimony of either this motorman or Neeley, or any other witness for the defendant. It is also true, that soon after the defendant reached Ohio, he commenced an action against his wife for divorce, in which he charged his wife with adultery; but within a month after this action was commenced, the defendant not only withdrew the suit, but published a card in the newspapers, completely exonerating his wife from the charges made against her. A copy of this card was doubtless sent to his wife, as it was offered in evidence by her at the trial, and as it is set out in the opinion of Mr. Justice Pope, its terms need not be referred to further here. Having thus made such reparation as was possible for this gross insult to his wife, which was utterly indefensible, he attempted by correspondence with his wife to bring about a reconciliation between them; and failing in this, he returned to South Carolina, some time in January or February, 1897, and immediately upon his arrival went to the house of the Shroyers, where he found his wife, and eventually succeeded in effecting a reconciliation. From this time forward, the parties lived together as man and wife for about twelve months, the wife in the meantime, to wit: on the 3d of June, 1897, having given birth to a child, while occupying a house built by defendant on a place which, at her instance, he had bought, quite near — within 100 yards of — the home of the Shroyers.
Now, taking the view of the testimony most unfavorable to the defendant, and granting (for the sake of argument *Page 453 only) that the testimony shows that the defendant deserted his wife in November, 1896, and was guilty of the charges of marital offenses committed before that time, yet such conduct on the part of the husband would afford no ground for the wife's claim of alimony, as such offenses were condoned by the reconciliation which took place either in January or February, 1897, and the living together by the parties as man and wife after such reconciliation for about twelve months. If, therefore, the plaintiff is entitled to her claim of alimony, the grounds of such claim must be sought for in the conduct of the husband after such reconciliation took place. First, then, as to the alleged desertion on the 3d of February, 1898. It seems to me that the testimony, so far from showing that the defendant deserted his wife on that occasion, shows on the contrary that she deserted him, by refusing to go with him when he took up his residence in Columbia. As has been shown above, the husband has a clear legal right to change his place of residence whenever he sees fit to do so, either with or without the consent of his wife, and she is bound to follow him wherever he chooses to go. If, as he says, he found after the experiences of a year he could not live in peace and quiet so near the Shroyers, who seemed to exercise such an unhappy influence over his wife, he had a perfect right to change his place of residence. But even disregarding his own testimony as to the cause of his desire to move away from the immediate neighborhood of the Shroyers, he, nevertheless, had a legal right to do so, whether he had good cause to do so or not; and his doing so gave his wife no legal grounds for complaint. It is clear, therefore, that the alleged desertion in February, 1898, affords the plaintiff no ground for her claim of alimony, even if the testimony tending to show that he wanted and expected his wife to go with him to Columbia, as evidenced by sending a carriage for her and a wagon to move her things, should be disregarded.
The next inquiry, therefore, is whether either of the other grounds for alimony as recognized by the law in this State, *Page 454 is established by the preponderance of the evidence? Did the defendant, after the reconciliation took place, treat his wife with such cruelty as amounted to the saevitia of the civil law? The testimony on the part of the plaintiff, coming from Levi Shroyer and his wife and a negro girl in the employment of the Shroyers, is to the effect that very soon after the reconciliation the defendant commenced and kept up the same kind of treatment as that to which he had subjected his wife before he went to Ohio; but this testimony was of a general character, and did not show any particular acts, except in two instances which will presently be considered; and it is entirely overbalanced by the testimony of the neighbors and persons who visited at the house. There is not a particle of testimony tending to show that the defendant ever inflicted any personal violence upon his wife. The only particular instances referred to is the threat to chop the wife's head off with a butcher knife, and the threat to kick her down the steps. This depends upon the testimony of Levi Shroyer and his wife, who says that she heard the threat to chop off her head over at her house, a distance of about 100 yards, and Levi Shroyer says he heard it while at work in his field, and yet neither of them went to the rescue of their adopted daughter. These threats, if made at all, were made, according to the testimony, about two weeks before the birth of the plaintiff's child; and it does not appear that the plaintiff sought refuge at the house of her parents by adoption, which was so near. It is manifest, therefore, that these threats, if made, excited no apprehension of danger to the wife, and were regarded as mere "sallies of passion" — to use the language of Sir Wm. Scott, above quoted, which do not amount to "legal cruelty." Besides, it is very singular that the defendant, whose only cause of complaint (as these witnesses represent) against his wife was her inability to gratify his desire for offspring, should have suddenly broken out into such violent threats, when her condition made it patent that she was about to gratify his desire, and did, in about two weeks afterwards, *Page 455 give birth to a child. The whole thing is incredible. But even if it were true, it would afford no ground for alimony in this case, for the reason why threats unaccompanied by actual violence are regarded as sufficient to amount to thesaevitia of the civil law, is that they excite apprehensions of serious bodily harm, which would justify a wife in leaving her husband, or refusing to go with him when he changes his place of residence. But this cannot be said in this case, for the undisputed testimony is that the plaintiff continued to live with her husband in a house by themselves, where she had been in much more danger than if she had gone to live with her husband at the hotel in Columbia, where she would be surrounded by people who could have protected her from the violence of her husband, if she really had any apprehensions of such violence. The next particular instance referred to by these witnesses is the alleged refusal by the husband to allow his wife to put a clean tablecloth on the table, and upon another occasion requiring her to use a carpet as a tablecloth, which, if true, are very reprehensible, but they certainly do not amount to legal cruelty. The testimony of Dr. Earle, in regard to the failure of the defendant to provide his wife with proper comforts and attention during her confinement, which, of course, is accepted as entirely true, would, without explanation, place the defendant in a very unfavorable light: but whether it would establish such "legal cruelty" as the law recognizes as a ground for alimony, may well be doubted. But that is explained by the testimony of the defendant, that he offered to hire additional help and actually did hire Ida Thompson, a colored woman (a fact admitted by Mrs. Shroyer in her testimony), but she was discharged at the instance of Mrs. Shroyer, as the defendant says.
The third ground upon which alimony will be granted must next be considered — and that is where the husband "practices such obscene and revolting indecencies in the family circle, and so outrages all the sentiments of delicacy and refinement, characteristic of the sex, that a modest and *Page 456 pure-minded woman would find these grievances more dreadful and intolerable to be borne than the most cruel inflictions upon her person." It will be observed that the word used is "practices," which implies the doing of some act, and does not include mere language, however indecent it may be; and this is fully shown by the language used by Dargan, Ch., in delivering the opinion of the Court in the same case (Hair v. Hair, supra), from which the above quotation is taken, where he says: "that no words of reproach and insult amount to legal cruelty; and no affront and indignity, no torture of the feelings and sensibilities, however severe and grievous to be borne, unaccompanied by bodily injury, or a well-grounded apprehension of such, will authorize the wife to leave the bed and board of her husband, and to claim thereupon from this Court a decree for alimony." The rule contemplates such a case as Jelineau v.Jelineau, 2 DeS., 45, or Williams v. Williams, 4 DeS., 183, where the husband took his mistress into the house with his wife and allowed her to eat at his table. In this case there is not a title of testimony showing that the husband was guilty of any such conduct, and, therefore, the plaintiff has failed to establish her right to alimony on this ground.
But in addition to all this, there is another ground which would fully justify the Circuit Judge in refusing to allow the plaintiff alimony, and that is the offer of the defendant to receive his wife into his home and treat her as a wife should be treated. This offer the Circuit Judge finds was made in good faith, and I am unable to find any testimony showing or tending to show the contrary.
I think, therefore, that the judgment of the Circuit Court should be affirmed, and this being the conclusion of the majority of the Court.
The judgment of this Court is that the judgment of the Circuit Court be affirmed. *Page 457