SUPREME COURT.

Taranaki Daily News, 17 May 1917, Page 7

SUPREME COURT.

DIVORCE CASES'. _l'ho sittings of tile Supreme Court in New Plymouth wcro resumed yesterday morning before His Houor, Mr. Justice HosUing. MARY McNAB v. DUNCAN MoNAB. This was an action on the wife's petition for dissolution of her marriage with the respondent on the grounds of cruelty and drunkenness. Mr. J. C. Morrison appeared for the petitioner and Mr. G. D. Gow for the respondent. Tile following formed the jury:— Messts. W. M. Perry (foreman), William Hardwick, Frederick Jones, junr, I. Gordon, J. Nodder, F. Goodwin, F. L. Elliott, H. E. Hill, J. 0. CltJave, J. H. Bed ward, A. Lee, C. C. Lister.

Mr. Robinson said the grounds of the petition Were that during the past four years and upwards the husband had been guilty of periodical outbursts of drunkenness and habitual cruelty to his wife, the cruelty consisting of assaults on her during those periods. He had been a prohibited person for a portion of that time; he had been prohibited in all for four different terms of twelve months, the last expiring in 1919. Counsel quoted authorities to show that habitual drunkenness did not necessarily mean continuous drunkenness, tat such frequent indulgence as to injure his health, unable to attend to his business, or, what was mainly relied oti in this case, unfit to carry out properly his duties as a married man.

Mary McNab, the petitioner, was the first called, and deposed that she was married to respondfent on September 4, 1901. at Okaiawa, and since then had lived at various places in New Zealand. There Were three'children of the marriage, aged 12, 10 and S>. Her married life had been a continual strife. Her husband had been a habitual drunkard ever since the marriage, having been drunk nearly every night except while he was prohibited, She had first taken out a prohibition order against him in Normanby, on July 3, 1911. He did not observe the terms of the order too strictly, and When they moved' to Eltham he was fined fof a, breach of the order. He was a butcher in <the employment of others and \sis discharged from his employment atNormahby without notice. After the expiration of the first) order he was fairly steady for a time, but broke out two or three times; and she took out a second order in Eltham on June 3, 191$. He succeeded in getting drunk while the second, order was in force. He could not get drunk in Eltham, where he was very well known, but got it in adjoining towns. He would' go to these places in a motor car on halfholidays and every other chance he got. Witness knew he got drink by his condition whefc he came home; he was then more like a beast than a m&n and behaved outrageously. There 'Was living with him owing fo his conduct and she took out another ofder on August 27, 1914. Under that order he behaved much the same as before; he got drunk whenever lie could' get liquor. A fourth order was taken out on August 9, 1915 but his cOndiict continued the same. She got a separation order from him>, 'by consent, on January 20, 1018, and they ha 4 been living apart ever since. She had not received a penny from him for her maintenance since or for some time before the separation. The respondent had the children. He put the two girls in the Salvatiori Army Home in Wellington and the boy had. been living with different people. On various occasions he. had Knocked her about; once he kicked her about five weeks before the youngest child was born. That was at Taradale, and he was drunk, as usual, at the time. They had to leave Taradale because he had no money, was out of Work, and they could not get even a pound of-butter on credit. When they were leaving Taradale he threatened to take the children out to the shed and cut their throats, one by one. She went to her people at Wanganui. After stopping a little time at Taradale he followed her to Wanganui and then went to Patea. Subsequently he went to Nor.manby, whete she joined him, he stating that he would be quiet and had a job that would last him his life. She had to go into the hospital, and the day she came out he punched her on the face 1 because his tea 'was cold, at 12 o'clock at night. Shortly afterwards they came to Eltham. where he threw a brick at her and very nearly stunned her. That ljas because she had called him out of a yard

at the request of some of tiie other men •who said ho was beastly drunk arid unfit to drive the horses. Shortly afterwards he threw a lighted candle in her face, and ohased the eldest girl oiit of the house. When anything went wrong outside he always came home nasty and "took it out" of those ftt home. Later, after the international football at Eltham, be came home drunk anil put his clenched fist in (her face. He would have struck her, but she called out and the landlord, who was in the room, prevoiited him. Witness gave details of other occasions upon which the respondent assaulted while drunk. The language he used to her was frequently disgusting in the extreme, 1 and so loud that neighbors complained. He never called her by her proper name; She could not repeat before the jury the epithets lie used, 'but would write down a sample of them for their perusal. . . Crosi-examined 'by Mr. Cow, 'witness said she had complained to the police about him getting drink while prohibited, but every time there was a ''dust up." 'She had thought a good many times »S complaining to the police, but on second consideration had refrained,

thinking of the money that would have to go in fines. She did not think she was aggravating to him, but it was aggravating to her to have her children wanting food and him coming home drunk nearly every night. The landlord, Mr. Danes, had boarded with them for eighteen months. Mr. Danes paid her £1 ft week and she gave him back lis a week for rent, keeping the rest for herself and children. The trouble did riot become greater between them after Mr. Danes went to board with them. Danes never Interfered except when McNa-b threatened to strike her. On that occasion Danes got hold of McNab and said, "Tf you want to fight, come outside, and fight a man, not a woman."

Stephen Danes, farmer, deposed thfit he had boarded with the McXab's fbr about eighteen months, going there when he purchased the house. While he was them the married lifo of the McNab's was very wild. On occasions McNab came tioi»u the worse for drink, when he would call her filthy names and strike ov Kick her before the children. There hud beon two or there such outbreaks while witness boarded in the bouse. Something would be said at the table, a row would begin, and kicks or blows

would follow. These incidents happened three or four times during the period the 'witness was a hoarder. Cross-examined by Mr. Gow, witness said he was still boarding with Mr. MeNab. McNab had instituted proceedings against his wife and had joined witness as co-respondent. iUif, Honor said such a matter could not he introduced into the present proceedings; it had hot.been pleaded. Constable Hadler gave evidepce as to complaints made to him by Mrs. McNab, and stated that he had taxed McNab with his conduct, stating that he would tke a prohibition order out against him. McNab did not oppose the order and ii was granted. In answer to His Honor Mr. Gow said the husband's petition had been filed previous to the one now before the Court.

His Honor: Then it would appear that your client, Mr. Gow, wants a divorce although he at present opposes it. Mr. Morrison: He wants damages, if he can get them. His Honor: Of course the respondent might want to clear himself of the accusations of habitual drunkenness and habitual cruelty. Mr. Gow: That is so, your Honor, and then there is the question of the custody of the children.

Mr. Gow then opened for the respondent, stating that he would call evidence to show that respondent had occasionally been intoxicated, but not so ferquently as to constitute habitual drunkenness. It would 1 also he shown that when drunk he would ha.ve caused no disturbance if left alone, but had 'been aggravated .by his wife. The respondent had been in constant employment for the last four years, and his employer had nothing against him. Duncan McNab, the respondent, denied that he held thrown a. brick at his wife. On the occasion referred to foe Was tipping a load of bricks when his wife came out and began aggravating hiiti. He told her to go away or he would tip the bricks over her. When he did tip the cart oho or two of the bricks fell over the fence, and she said he had thrown them at her. (He had worked full time that day, was sober, and it was not true that some of the men there had asked his wife to take him away. He had never struck or kicked' his wife in his life, although he admitted having pushed her. Oh the morning of December 27, 1013, he was out of the house for a time looking for a cow, and on returnihg met Danes coming out of his wife's bedroom only partly dressed. 'He asked Danes what he was doing thcro and he replied, "Oh, nothing. Looking for the cow." He then asked his wife what she had been doing with Danes, and she replied, "Go to h , and mind your own business." During that day the three of them were at the Axeman's Carnival, where Danes and his wife went about together, and he had heard people say "There goes the woman with two husbands." This naturally annoyed him, and in the evening at tea time a barney started. Ho told ihis wife that he did not want to have anything to say to her and pushed her. 'Danes interfered and respondent tried to put him out but could not do so. During the struggle Danes kicked him. He had never been drunk in his life and wa9 not addicted to drink, but he occasionally took a glass of beer like Other men. He had never lost a day's work through drink.

To Mr. Morrison: He and his wife had lived all right together till Danes had come to board with them. If it had not been for Danes there would never have been any trouble between them. During the last five years he had never gone home very "merry," but he had got liquor in the house taken there 'by Danes. Frar'c Lehrke, J.P., settler residing at Eltham, deposed that he had been a neighbour of the McNab's for four years. During the first twelve months he noticed nothing different in the house from any other house, but after Danes became a boarder rows became frequent. He had heard bad and violent language, principally by McNab, and had complained of it several times, once to the police. Witness had never seen MeXab the worse for drinlc.

To. Mr. 'Morrison: It was quite possiflle that McNab might have been drunk and managed to get home without witness seeiftg him. Frank William Curtis, butcher's assistant, living in Eltham, gave evidence to the effect that McNab had heen working for his (Witness's) father for about four years up till about February last. McNab had never neglected his work, and witness had never seen him drunk, although he was a little "merry" on the day witness engaged him.

to Mr. Morrison: Witness was not in the habit of frequently hotels in tho evening, but he was about the town,a good deal. He had met McNab practically every night, and had never seen him the worse of drink. Me\;ib was only away from work once, and that day he was ill.

This closed the case for the respond ent.

Mr. Gow, addressing the jury, submitted that the evidence of the last witness was sufficient to show that the respondent had been quite able to carry on his work without complaint from his employer, and that therefore there was no ground for the allegation of habitual drunkenness As to cruelty, the jury had heard the witnesses on both sides and it would be for them to say which side was entitled to the greater credence.

•Mr. Morrison, on behalf of the petitioner, said they had heard the conflicting statements of man and wife, and it was between these two statements they had to decide. The only answer to the wife's allegations was a flat denial by the husband, and the evidence of t\v6 witnesses, who said they had never seen the man'drunk. The husband did not deny that he took drinks, bub admitted that he had got "merry," and it was generally to be found that when he got to that stage he generally went further although he would not admit it next morning. Notwithstanding the husband's statement the fact remained that four prohibition orders had been issued against him, and such orders were not usually issued, even by consent, without good and sufficient reason. With regard to the cruelty it did not matter whether the petitioner had exaggerated a little, the question was had the incidents detailed by her taken place, had there been cruelty of some degree. He submitted that the evidence fnllv justified the allegations qf both habitual drunkenness and habitual cruelty.

I His 'Honor, in summing up, said they had just listened to a somewhat painful [famiiy history, and no doubt the jury thought it would be desirable to separate the parties by granting the divorce. It was not possible to do so in the present) case unless tho petitioner had established her allegations of habitual drunkenness and habitual cruelty. These were the two points on which the jury must be satisfied, or else the petition

failed. The uetitioner had stated, that up to the time she had taken out a prohibition order against him from the time they were married' lie had been drunk practically every night. That was a very 'broad. statement to make, and would indicate habitual drunkenness for about ten years. In support of her statement it had been shown that four prohibition orders had been taken out against MeXal), and she 'was further corroborated by the witness Danes. As against) that they had the statement of the respondent himself and the evidence of two witnesses One of these, a nextdoor neighbor, had stated that he never saw the respondent drunk. The other witness, the son of respondent's employer for four years, and said that neither had he seen him drunk, and that during the whole oi that period he had only lost one day's work, which had been due to sickness. The other question was the allegation of cruelty. As he (His 'Honor) nad pointed out, any opportunity for cruelty had ceased to exist in January, IOIC, whim the parties were separated. There had been nothing to show that the woman's* health had suffered from the alleged cruelty. He was somewhat doubtful in his own mind whether or not he should withdraw the allegation of habitual cruelty from the jury as he did not think it had 'been established by the evidence. 'He would, however, leave the decision of both questions to the jury.

After fifteen minutes consideration the jury returned answers to the issues submitted to them as follows: (1) Has the respondent during the past four years and upwards been a habitual drunkard!— No. (2) Has the prisoner been habitually cruel to his wife?— No. His Honor, on the motion of Mr. Gow, dismissed the petition. (EUPHEMIA CLARKE v. ROBERT JAMES CLARKE. _ This was wife's petition for dissolution of marriage on the grounds of desertion. Mr. D. Hutcheh appeared for the petitioner. The respondent did not appear and waß not represented by counsel. Euphemia Clarke, the petitioner,, gave evidence to the effect that she had been married to the respondent at her mother's residence, Rahotu, on .July 26, 1008. a year ltaor, after the birth of her first child, her husband was connected with theft and sentenced to imprisonment. After he came out of gaol ho visited her at her mother's place, remaining one night. He went away next morning. That was in June, 191*1, and she had not seen him since, nor received any letters from him.

At this stage the further hearing of the petition was adjourned for the production of corroborative evidence. 1 JULIA MARIA DOLORES HEATHER v. ARTHUR BU'RGOY'NE •HEATHER. A wife's petition for dissolution oi' marriage on the ground of adultery. Mr. J. H. Quilliam appeared for the petitioner. The respondent was not represented. ' The petitioner gave evidence to the effect that sho was married to the respondent on April, 1882, in the Church of the Holy Sepulchre, Auckland. After marriage she anil her husband lived together for one year at Hokianga, five years at Pukerimu, and from then on to February 12, 190G, at Mount Eden, Auckland. There had been four children of the marriage, two girls and two boys, now all grown up, On or about the 22nd February, 1900, the respondent left the petitioner and since December, 1907, had been living in-adultery with ono Annie Jackson, of Wanganui, spinster, at ElI tliam.

J. C. Morrison, barrister and solicitor, practising at Eltham, deposed that in February last and subsequently lie saw the respondent in Eltham and showed him a. certificate of the birth of one of the petitioner's children. Respondent admitted that he was the father of the child, and further stated that he had left his wife about ten years ago and gone to Wanganui. where he mar,ried n Miss Jackson, with whom he had been living as hor husband ever since. •His Honor granted a decree nisi, to be | made absolute on motion in three months, with costs £25 and expenses £5 againsjf the respondent.