#### RUBY H. BATEMAN v. THOMAS E. BATEMAN.

(Filed 21 March, 1951.)

1. Divorce and Alimony § 14—

G.S. 50-16 provides two separate remedies : (1) alimony without divorce, and (2) subsistence and counsel fees pendente lite.

2. Same—

An affirmative finding upon the issue as to whether defendant had offered such indignities to plaintiff’s person as to render her condition intolerable and life burdensome will support judgment for alimony without divorce notwithstanding the negative findings of the jury upon the issues as to whether defendant had separated himself from plaintiff and failed to provide her subsistence, and had wrongfully abandoned her, and by cruel and barbarous treatment had endangered her life.

*3583. Divorce and Alimony § 5d—

In an action for alimony with divorce under G.S. 50-16 it is incumbent upon plaintiff to allege and prove that the acts of misconduct complained of were without adequate provocation on her part, but allegations that plaintiff had been a dutiful wife and had tried to make a home for defendant and live with him in peace, with her testimony on the trial that she had done nothing to provoke defendant’s mistreatment of her, is held, sufficient for this purpose.

Johnson, J., took no part in the consideration or decision of this case.

PetitioN by plaintiff to rehear the case reported in 232 N.C. 659, 61 S.E. 2d 909, where the facts are stated.

Simms <& Simms and John M. Simms for plaintiff, petitioner.

Bichett <& Banlcs for defendant.

Devin, J.

The plaintiff’s suit was under G.S. 50-16 and her prayer for relief was for reimbursement for necessary expenses incurred while she was living with the defendant as his wife, and for present subsistence and counsel fees. The statute provides two separate remedies, one for alimony without divorce, and second for subsistence and counsel fees. Oldham v. Oldham, 225 N.C. 476, 35 S.E. 2d 332; McFetters v. McFetters, 219 N.C. 731, 14 S.E. 2d 833. As grounds for relief under this statute the wife must allege and prove that the husband has been guilty of misconduct or acts that would constitute cause for divorce. The causes for divorce from bed and board are enumerated in G.S. 50-7, and among these, under section 4, the statute declares it a cause for divorce if either party “offers such indignities to the person of the other as to render his or her condition intolerable and life burdensome.”

In the case at bar the plaintiff, in addition to other matters pleaded not now pertinent, has alleged, in substance, that because of the continuous mistreatment, physical violence and abuse of her by the defendant she has suffered many “indignities to her person,” which she sets out in detail, and that such mistreatment and abuse has rendered her condition intolerable; and that defendant has offered such indignities to her person as to “render the plaintiff’s condition intolerable and her life burdensome.” On the trial the plaintiff offered evidence tending to support this allegation.

In the former opinion it was thought the issues as answered by the jury would not support the judgment. It appears from the record that issues were submitted to the jury (1) as to marriage, (2) as to whether the defendant had separated himself from the plaintiff and failed to provide subsistence, (3) was a drunkard, (4) had wrongfully abandoned the plaintiff, (5) had by cruel and barbarous treatment endangered her *359life,-and (6) “did tbe defendant offer sucb indignities to tbe person of tbe plaintiff as to render ber condition intolerable and life burdensome.”

Tbe jury answered tbe first issue yes, and tbe 2nd, 3rd, 4tb and 5tb issues no, but answered tbe 6tb issue yes. Tbis finding alone, we tbink, was sufficient to support tbe judgment in favor of tbe plaintiff.

In addition to plaintiff’s allegations of mistreatment and abuse to wbicb tbe 6tb issue was addressed, it was also incumbent upon tbe plaintiff to allege and to prove tbat tbe acts of misconduct complained of were without adequate provocation on ber part. Barker v. Barker, 232 N.C. 495, 61 S.E. 2d 360; Carnes v. Carnes, 204 N.C. 636, 169 S.E. 222. Here, tbe plaintiff alleged tbat sbe bad at all times been a dutiful wife to tbe defendant and bad tried to make a borne for bim and to live witb bim in peace, and sbe testified in ber examination on tbe trial tbat sbe bad done nothing to provoke tbe treatment complained of. Witb reference to tbe 4th, 5th, 6th and 7th issues tbe court charged tbe jury tbat tbe burden was upon tbe plaintiff to show sbe was “free from fault, free from blame on these four issues.” (Tbe seventh issue was whether tbe defendant was an habitual drunkard).

Under these circumstances we do not tbink tbe jury’s finding on tbe 6th issue, in view of tbe pleadings, evidence and charge of tbe court, was rendered ineffectual by tbe findings on tbe other issues.

For tbe reasons stated we reach tbe conclusion tbat tbe petition to rehear should be allowed and tbe judgment appealed from affirmed. It is so ordered.

Petition allowed.

JOHNSON, J., took no part in tbe consideration or decision of tbis case.