#### FLORENCE V. DOWDY v. J. T. DOWDY.

(Filed 5 April, 1911.)

1. Appeal and Error — Verdict Set Aside — Discretion—Reason Given.

Whatever may have been the reason given by the trial judge in setting aside a .verdict, no appeal will lie when it actually appears that he had set it aside as a matter within his discretion.

2. Appeal and Error — Appeal Dismissed — Decision—Supreme Court’s Discretion.

Though an appeal be dismissed by the Supreme Court as premature, the Court may, in its discretion, consider the questions presented.

3. Divorce a Mensa — Abandonment—Cruel Treatment.

Abandonment by the husband of his wife in an action by the latter for divorce may be proved by such acts of the husband as amount to cruel treatment sufficient to compel her to leave home.

*5574. Same — Wife’s Conduct — Burden of Proof, ,

Tile wife in showing abandonment, by her husband’s conduct in compelling her to leave home, in her action for divorce must also show that his cruel conduct was unwarrantable, and not the proximate cause of her own acts done at the time.

5. Divorce a Mensa — Issues—Misconstruction—Wife’s Conduct.

In this action for divorce issues were submitted upon the question of the husband’s abandonment and that of the indignities to the wife’s person such as would render her condition intolerable, etc.: Held, a third issue, “Was the plaintiff a dutiful wife and without blame on her part?” was too broad, and open to misconstruction.

Allew, J., did not sit on the hearing of this case.

Appeal from W. B. Alíen, J., at August Term, 1910, of Chatham.

Action for divorce from bed and board. These issues were submitted without objection:

1. Did the defendant abandon the plaintiff, as alleged? Answer: Yes.

2. Did the defendant offer such indignities to the person of the plaintiff as to render her condition intolerable and her life burdensome? Answer: Yes.

3. If so, was the plaintiff a dutiful wife and without blame on her part? Answer: No.

The plaintiff tendered judgment upon these issues and findings, which the court declined to sign. Plaintiff excepted and appealed.

Hayes & Byrmm for plaintiff.

II. A. London & Son for defendant.

Brown, I.

The record states that the court declined judgment for plaintiff upon the ground that the plaintiff was not entitled thereto upon the findings to the issues. His Honor then set aside the verdict in the exercise of his discretion, but would not have done so if he had not been of opinion that the plaintiff was not entitled to judgment on the verdict.

The action of his Honor in setting aside the verdict in his *558discretion and ordering a new trial is not affected by the reason given for it. Had be dismissed the action, bolding tbat upon the issues plaintiff could not recover, an appeal would lie. But as no judgment was rendered, no appeal can be entertained. Clark’s Code (3 Ed.), sec. 548, and cases cited; Taylor v. Bostic, 93 N. C., 415.

While the appeal must be dismissed as premature, in the exercise of our discretion, we will consider tbe question presented. S. v. Wylde, 110 N. C., 502; Milling Co. v. Finlay, 110 N. C., 411.

Tbe complaint sets up various acts of cruelty and barbarity covering most of tbe period of time during wbicb tbe plaintiff and defendant resided together. On, 20 May, 1908, plaintiff avers that she was compelled to leave tbe borne of tbe defendant because of such treatment. She also avers tbat she has been a true and faithful wife and gave her husband no just cause for such treatment, and in her amended complaint she sets out in detail tbe conduct of herself and her husband upon tbe occasions when tbe cruel and brutal treatment was inflicted upon her.

Tbe answer denies each allegation of tbe complaint except tbe averment of marriage.

It has been repeatedly held tbat in an action for divorce from bed and board by tbe wife she must not only set out with some particularity tbe acts of cruelty upon tbe part of tbe husband, but she must aver, and consequently offer proof, tbat such acts were without adequate provocation upon her part. Martin v. Martin, 130 N. C., 28; O’Connor v. O’Connor, 109 N. C., 139; Jackson v. Jackson, 105 N. C., 433; White v. White, 84 N. C., 340.

It is not claimed in this case that tbe defendant departed from bis home and abandoned the plaintiff, but tbe averment is that the wife was compelled to leave tbe defendant on account of bis cruel treatment. While this is in law an abandonment by tbe husband (High v. Bailey, 107 N. C., 70), yet, as a ground for divoi’ce, it is dependent upon tbe establishment of tbe acts of cruelty wbicb it is averred compelled plaintiff to *559leave ber borne, and of tbe further fact tbat sucb acts were not tbe consequence of any adequate provocation upon tbe plaintiff’s part.

As bas been said: “A wife is not entitled to a divorce by reason of tbe cruelty of ber busband if sbe is a woman of bad temper and provokes bis ill usage. Her remedy in sucb cases is by ber changing her manners.” Shel. Marriage and Divorce, 431; White v. White, 84 N. C., 343.

Upon tbe uniform precedents it would appear tbat plaintiff was not entitled to judgment in consequence of tbe response to tbe third issue. ,

As tbe case is to be tried again, we suggest tbat this issue is too general in its terms and open to misconstruction. His Honor bad to explain to tbe jury tbat tbe question of tbe wife’s moral delinquency was not involved, and tbat tbe words “without blame” did not imply tbat sbe bad led a blameless life.

The matter at issue is, not as to whether the plaintiff is a good woman, or a good wife, but whether tbe acts of cruelty which sbe sets out in ber complaint, and which sbe says compelled ber to leave ber busband, were brought about by tbe unwarranted conduct at tbe time of tbe plaintiff herself. O'Connor v. O'Connor, supra; McQueen v. McQueen, 82 N. C., 471; Joyner v. Joyner, 59 N. C., 822. In other words, tbe wife must show that she was not herself of such “contributory negligence” as was tbe “proximate cause of tbe injury.”

Tbe appeal is

Dismissed.