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that he had lived in Trenton for fifteen years that place is the domicil of a person in then last past. This was corroborated by the which he has voluntarily fixed his habitatestimony of the father of the appellant. tion, not for
temporary or special a clergyman of the Baptist denomination, purpose, but with a present intention of who testified that at the time he married making it his home, unless or until somehis son to the respondent, on the 6th thing which is uncertain or unexpected shall of November, 1889, his son a resi- happen to induce him to adopt some other dent of Trenton; that he had resided in permanent home.” The doctrine laid down Trenton ever since, and still resided there by the courts of the United States is that on the day he testified, October 10, 1896. a domicil, having been once acquired, conIt is true that in his examination before the tinues until a new one is actually acquired vice chancellor the appellant said that after animo et facto. 10 Am. & Eng. Enc. Law, his wife left him and had gone to New York p. 15; Cadwalader v. Houell, 18 N. J. L. and resided there in a flat he went there and 138; Clark v. Likens, 26 N. J. L. 209. lived with her for four or five months, when I am unable to agree with the conclusion he again went back to Trenton. I find it reached below, that, as alleged in the bill difficult to perceive how this temporary resi- of review at the time of beginning his suit dence in New York city can be held to affect for divorce, the appellant was a resident his residence or domicil in Trenton in the of the state of New York, and therefore absence of any evidence of intention on his am of opinion that there was no fraud part to abandon it. The fact that he did practised on the court of chancery by the not intend to change his domicil is mani appellant in swearing that he was a resifested by appellant's beginning his suit for dent of the state of New Jersey. divorce after he returned to Trenton, and The second ground upon which below was this established his belief, not only as to his based the right of the respondent to relief residence, but his domicil in this statt. is because, as stated in the opinion, after The learned vice chancellor, for the pur- the adultery charged in the bill, and after pose of sustaining the view that the appel- the commencement of the husband's suit, lant had abandoned his residence in New and the service upon the wife of process, Jersey by residing in New York city a and before decree, the husband returned to few months, cited the case of German the wife and cohabited with her, and led Sav. & L. Soc. v. Dormitzer, 192 U. S. her to believe that he had abandoned the 125, 48 L. ed. 373, 24 Sup. Ct. Rep. 221, suit. as “directly in point.” An examination of Condonation, standing alone, would not that case discloses that it is far from be- have justified the granting leave to file a ing in point. In the opinion in that case bill of review; for how can that be considMr. Justice Holmes said that it appeared ered new matter, which could have been from the testimony of the husband that be produced and used by the respondent at the fore he made a contract for part of the land time when the decree was made? Every alin question he had sold out his property and legation relating thereto, if true, was known business in Kansas and had gone in search to the respondent during the pendency of of what he called a new location, and that the divorce suit, and before the entering of when he bought this land he desired to lo- the decree, and if intended to be interposed cate there. These facts, the court held, as a defense should have been pleaded and were susficient for the courts of Kansas to proved in that suit. It is too late if it is find that he had changed his domicil. first made known in an application for a
It seems unnecessary to point out how bill of review; for, as was well said by Lord absolutely the facts in the case under con- Chancellor Talbot in Taylor v. Sharp, 3 P. sideration are at variance with those in the Wms. 371, "unless this relief were confined case cited; the intent in that case of the to such new matter, it might be made use husband to change his domicil being ap- of as a method for a vexatious person to be parent from his own testimony, while here oppressive to the other side and for the there is no evidence whatever to warrant cause never to be at rest.” Now, after the the belief, or to enable a court to find, that lapse of four years from the entering of the appellant intended to change his domi- the final decree of divorce, and years after cil.
the taking from her of the child pursuant To construe the temporary residence by to the terms of said decree, she came beappellant with his wife in New York to be fore the court of chancery charging that a change of domicil seems to me unwar- she was deceived by her husband as to the ranted; for, as Mr. Justice Depue said in abandonment of the suit for divorce; that Harral v. Harral, 39 N. J. Eq. 279, 51 Am. during the pendency of that suit he conRep. 17, "to the factum of residence there doned her guilt; and, further, that she must be added the animus manendi, and never knew of the granting of the final
decree of divorce until after her time for one of the masters in chancery, she was taking an appeal had expired. No extended asked and replied: review of the testimony is, it seems to me, Q. Did you know that he had obtained necessary in the matter of the alleged de the decree of divorce at that time[summer ception on the part of the appellant as of 1897]? to the abandonment of the divorce proceed A. He said that he had. ings, for the extent to which the respondent Q. When did he say that? goes in her testimony is that she supposed
A. Well, he told me that when I first saw from appellant’s conduct he had abandoned him after he left home, November. The next the proceedings, but there is no pretense time I saw him he said he had the divorce. whatever that the appellant ever told her when it was granted I don't know; he that he had done so, and in fact she testi
say when he got it. fies distinctly that she never had any conversation with him relating to the suit for Now, in the testimony before the vice divorce pending the suit. The testimony chancellor, in referring to the summer of of the appellant is that he never visited 1897, she was asked and said: his wife during the pendency of the proceed Q. (By the Court). I understand you to ings, and never saw her save when he vis- say he came to your father's house and ited the boy, who was then living with her. stayed a week the next summer (1897). The charge that the respondent had been He asked you when was the last time he led to believe that the appellant had aban- bad sexual intercourse? doned his suit for divorce is not sustained
A. The last time was in the summer of in fact. This being so, the charge of fraud 1897, at home. falls, and no ground can exist for the con
Mr. Tyndall: That was after the decree. sideration of the alleged condonation, which,
The Court: After the decree, if she was as before stated, could not be held to be willing to accept him as a concubine would new matter warranting the giving leave to file a bill of review, but was a personal de.
A. I didn't know the divorce was granted. fense of the respondent, which she could set up as a defense or waive, as she saw
Q. (By the Court). He never told you fit.
the divorce was granted ? This brings us to the consideration of the
A. He never told me, and I never knew respondent's alleged denial of knowledge of it any way to be positive of it: the existence of the granting of the decree
Mr. Backes : Did I understand the witof divorce until shortly before the time she ness to say she didn't know and he never filed the petition for a bill of review. An told her? examination of her petition discloses that A. He never told me, no, that the divorce upon that very vital part of the respondent's had been granted; nobody ever told me. case the allegation in the petition is that
It is difficult to reconcile the very mate“your petitioner first heard positively that a divorce had been granted to her husband, rial variance between the testimony of the Howard Watkinson, for infidelity on the respondent given at two different times in part of your petitioner, through William the same One thing, however, it D. Tyndall, an attorney and counselor at law does demonstrate, and that is the truth of of New York and New Jersey, who exam- the vice chancellor's comment that the wife ined your petitioner in supplementary pro- clearly is not to be implicitly believed. ceedings during the year 1901.” Again the No attempt was made to reconcile these averment in her bill of review is: “And statements of the respondent, and, in my your oratrix having but recently discovered opinion, the respondent has failed to susthe fraud practised upon her, and having tain the allegation of the petition and bill only recently learned that a decree of di. that she had only learned of the granting vorce had been granted in said cause so of the divorce in the year 1900, and she has as aforesaid instituted by her said husband, no standing to urge it as new matter, then she expressly charges said decree, so fraud- only brought to her knowledge, to enable ulently obtained as hereinbefore mentioned, her to file a bill of review. ought to be set aside,” etc.
The respondent having failed to make out The evident intent of the above allega
a case either on the question of residence tion was to excuse the laches of the peti
or of condonation and fraud, we are brought tioner, the respondent here. An examina- to the consideration of the very serious and tion of her testimony on this point is in
important question of whether her laches teresting.
and delay in petitioning for the filing of a When examined in this cause de bene esse bill of review has barred her right to the on June 30, 1902, before Samuel C. Mount, I relief prayed for. The record in this case
shows that the petition for leave to file a The time of appeal having expired when bill of review was not filed until nearly four this application for leave to file the bill of years after the entering of the final decree review was made, the petitioner was barred in the suit for divorce, and the question to unless her case could be brought strictly be determined is whether the laches and de within the exception of newly discovered lay of the respondent in asserting her rights evidence, or of some special equity that is a bar to this suit.
would give the court the discretionary powThe rule in the English courts is that, er to make the order. when twenty years have elapsed from the time of pronouncing a decree which has from the case, there is left only one matter
The question of fraud being eliminated been signed and enrolled, a bill of review which could in legal contemplation have cannot be brought, unless the plaintiff was been urged, either as a newly discovered under disability. Dan. Ch. Pl. & Pr. 1580; fact or as a ground of special equity upon Mitford, Ch. Pl. 105; Lytton v. Lytton, 4 Bro. Ch. 441; Deloraine v. Browne, 3 Bro. which to rest an application for a bill of Ch. 633.
review, viz., the ignorance of the petitioner And in the Supreme Court of the United of the existence of a decree of divorce until States, in the case of Thomas v. Brocken- after the time for appeal had expired. But brough, 10 Wheat. 147, 6 L. ed. 288, Wash- it has already been shown that this has no ington, J., in commenting upon the question foundation in fact, for the petitioner in her of the limitation of the right to file a bill own testimony admits and swears to her of review, said: "It must be admitted that knowledge of the final decree in the divorce hills of review are not strictly within any suit within a year after the entry of the act of limitations prescribed by Congress, same. but it is unquestionable that courts of But in the court below the learned vice equity, acting upon the principle that laches chancellor said that he was unable to see and neglect ought to be discounterianced, how any delay beyond the time limited for and that in cases of stale demands its aid taking an appeal on the part of the reought not to be afforded, have always in- spondent could on any known principle afterposed some limitation to suits brought fect her right to a declaration by the court in those courts.” And this case explicitly that the decree of divorce was invalid and declares the rule, never since departed froin, void ab initio by reason of the lack of jurisin that court, as follows: "There is no stat. diction of the court of chancery to proceed ute expressly limiting bills of review, but in the cause. He then adds that where the courts of the United States are gov- there is a lack of jurisdiction by reason of erned in this particular by the analogous
a want of residential domicil on the part of limitation of the right of appeal, and there both parties, combined with extraterritorial fore a bill of review cannot be filed after
service and the absence of any formal apthe lapse of five years from the final decree.” Applying this rule to the practice pearance by the defendant, it followed that in our state, after the lapse of three years this reason that he held that the respond
the decree was absolutely void. It was for leave would not be granted to file a bill of review.
ent's belief was not affected by her laches. There is, however, one exception to the But, as we have already shown, there was general rule in England as noticed by Mit. a residential domicil on the part of the ford, and that is the discretionary power of appellant when he filed his bill for divorce, the court in the case of newly discovered and, although the service on the wife of evidence, and this exception Judge Wash- process was extraterritorial, it conformed to ington recognizes in. Thomas v. Brocken- the law of this state, and the decree, instead brough, 10 Wheat. 147, 6 L. ed. 288, say- of being void, was valid and binding upon ing: “Whether a bill of review, founded the parties. upon matter discovered since the decree is There is, however, another consideration in like manner barred by the lapse of five why the laches of the respondent should not years after such decree, is a question which be overlooked, and that is that on the need not be decided in the present case, since strength of the decree in the court of chanwe are all of opinion that it is in the dis- cery the appellant has married again, so cretion of the court to grant leave to file that other rights have now intervened, and a bill of review for that cause.” My exam- an entirely innocent party will suffer should ination of the authorities leads me to the the decree be revoked. conclusion that the law as above laid down I am clearly of the opinion that the in the Supreme Court of the United States earlier decision of the court of cha ry has been almost uniformly followed in this that the appellant had a legal domicil and country.
residence in this state when he filed his bill for divorce has not been successfully im- / lay of the respondent in asserting her rights peached, that there was no condonation on bars her from the relief prayed for by her. his part of the adultery of his wife that she The decree below should be reversed, and is now entitled to set up, and that the de. 'the bill of review dismissed.
NORTH CAROLINA SUPREME COURT.
H. S. HANCOCK
Messrs. W. W. Clark and F. H. Busbee
& Son, for appellant: WESTERN UNION TELEGRAPH COM
When the law of the place whence the PANY, Appt.
message was sent, and that of the place of delivery, both refuse to recognize such dam
ages, they cannot be recovered, although the (...... N. C. ........)
action may have been brought in a juris
diction which recognizes the right to recov1. The validity and interpretation of
er them. the contract, as well
the rule measuring the damages arising upon its
Thomas v. Western U. Teleg. Co. 25 Tex. breach and the company's liability therefor, Civ. App. 398, 61 S. W. 501. are to be determined by the laws of the state Such damages cannot be recovered in where a telegram is filed for transmission in Maryland. case the points of inception and termination
Sloan v. Edwards, 61 Md. 106; United are in different states.
States Teleg. Co. v. Gildersleve, 29 Md. 232, 2. The credibility and value of the tes- 96 Ani. Dec. 519; Francis v. Western U.
timony of a lawyer of another state as to what the rule upon a certain subject Teleg. Co. 58 Minn. 252, 25 L. R. A. 406, 49
is in that state may be submitted to the jury. Am. St. Rep. 507, 59 N. W. 1078; Connelly 3. The exercise by the trial court of
v. Western U. Teleg. Co. 100 Va. 52, 56 L. its discretion as to the setting aside R. A. 663, 93 Am. St. Rep. 919, 40 S. E. 618. of a verdict as being contrary to the clear The law of the state in which the conweight of the evidence will not ordinarily tract was entered into should control. be reviewed on appeal.
Bryan v. Western U. Teleg. Co. 133 N. 4. Mere disappointment and regret are not included in the rule allowing damages
C. 603, 45 S. E. 938. for mental anguish upon failure of a tele
Disappointment and regret are not syn. graph company promptly to deliver a death onymous with mental anguish. message.
Hunter v. Western U. Teleg. Co. 135 N. 5. One claiming damages for delay in C. 458, 47 S. E. 745. the preparations for interment of
Mr. W. D. McIver for appellee. his relative because of failure promptly to deliver a telegram has the burden showing that the preparations would have
Brown, J., delivered the opinion of the been made had the telegram been promptly court: delivered, and such fact will not be pre- We gather from the record these facts: sumed.
The plaintiff and his brother resided in
North Carolina, and their father, S. M. (March 8, 1905.)
Hancock, at New Church, Virginia. The
family burial ground is Goodwill cemetery, A
PPEAL by defendant from a judgment in Maryland, 8 or 10 miles from the father's
of the Superior Court for Craven County home. Its nearest depot is Pocomoke City, in favor of plaintiff in an action brought to Maryland, 442 miles away. New Church recover damages for failure promptly to and Pocomoke City are about 11 or 12 miles transmit and deliver a telegram. Reversed. distant. On Saturday, July 11, 1903, the
The facts sufficiently appear in the opin- plaintiff was at Johns Hopkins Hospital, ion.
with his brother, Thomas, and his wife.
NOTE.-As to damages for mental anguish Co. 39 L. R. A. 463; Western U. Teleg. Co. v. because of default of telegraph company, see Robinson, 34 L. R. A. 431 ; Cashion v. Western also, in this series, Western U. Teleg. Co. v. U. Teleg. Co. 4) L. R. A. 160; Western U. Rogers, 13 L. R. A. 859 ; Wilcox v. Richmond Teleg. ('o. v. Ferguson, 54 L. R. A. 846 ; Gray & D. R. Co. 17 L. R. A. 804 ; Connell v. West- v. Western U. Teleg. Co. 56 L. R. A. 301 ; Con. ern U. Teleg. Co. 20 L. R. A. 172: Western U. nelly v. Western U. Teleg. Co. 56 L. R. A. 663 ; Teleg. Co. v. Wood, 21 L. R. A. 706; Interna- Robinson v. Western U. Teleg. Co. 57 L. R. A. tional Ocean Teleg. Co. v. Saunders, 21 L. R. 611; Western U. Teleg. Co. v. Crocker, 59 L. A. 810; Francis v. Western U. Teleg. Co. 25 R. A. 398; Cowan v. Western U. Teleg. Co. 64 L. R. A. 406; Mentzer v. Western U. Teleg. Co. L. R. A. 545 ; Barnes v. Western U. Teleg. Co. 28 L. R. A. 72; Morton v. Western U. Teleg. 65 L. R. A. 666 ; and Green v. Western U. Teleg. Co. 32 L. R. A. 735 ; Peay v. Western U. Teleg. Co. 67 L. R. A. 985.
Thomas had gone there for an operation, ordinarily review the exercise of such pow. under which he died. At the defendant's er. Possibly the jury were not satisfied office in the hospital, about 6 P. M. Satur. from the deposition of the attorney (Mr. day, the plaintifffiled a telegram as fol. Cross) as to what is the law of Maryland. lows: "S. M. Hancock, New Church. Thom- The defendant will have an opportunity on as dead. Will arrive at Pocomoke 3 A. M. the next trial to further enlighten the court H. S. Hancock.” This telegram was not de- and jury more specifically upon the law as livered until Monday, 13th. There being to the proper measure of damages for menno earlier train, the plaintiff, with his tal anguish as it is administered in Mary. brother's body, and the widow, arrived at land. Pocomoke City Monday morning a half 2. The judge, among other things, charged hour late, at 4 o'clock. A storm prevailed, the jury that, "upon the question of damwhich prevented the plaintiff leaving the ages, the message upon its face disclosing train until 6:30 A. M. There was no one its urgency and relating to death, the deto meet him, and no preparation had been fendant had notice that a failure to deliver made for the burial. The plaintiff again might reasonably cause mental anguish to telegraphed by the Postal Company to his the sender; and in such case the damages father, who arrived between 9 and 10 A. M. for mental anguish are such damages as Preparations were made, and the interment the jury shall find the plaintiff has suffered took place about 5 P. M.
from disappointment and regret occasioned 1. The contract in this case was made in by the fault or neglect of the company in its Maryland, and the contracting parties are failure to notify the sendee, in order that presumed in law to have had in contempla preparations and arrangements might be tion only such damages arising from the made for the reception and interment of the breach of it as could be awarded under the body.” The court erred in using the words law of Maryland at the date of the telegram. “disappointment and regret.” There is a In this case the sender was in Maryland at very material difference between the sigthe time he filed his telegram. The sendee nificance of those words and that keen and was in Virginia. The defendant, we judge poignant mental suffering signified by the by depositions in the record, was under the words “mental anguish. The right to rebelief that the law of Virginia in some cover damages for purely mental anguish way affects this contract. The law of Vir- not connected with or growing out of a ginia has no relation to it. If a telegraph. physical injury is the settled law of this ic message is delivered to the company in state, and it is too late now to question it. one state to be transmitted by it to a place Our authorities are up to this time uniform in another state, the validity and interpre- and unanimous as to the general doctrine. tation of the contract, as well as the rule Differences, of course, arise as to its applimeasuring the damages arising upon
a cation in particular cases. Young v. W'estbreach and the company's liability therefor, ern U. T'eleg. Co. 107 N. C. 370, 9 L. R. A. are to be determined by the laws of the for. 669, 22 Am. St. Rep. 883, 11 S. E. 1044, to mer state, where the contract originated. Hunter v. Western U. Teleg. Co. 135 N. C. Bryan v. Western U. Teleg. Co.133 N.C.607, 459, 47 S. E. 745. The language used in 45 S. E. 938, Citing Reed v. Western U. Teleg. nearly all the cases in this and other states Co. 135 Mo. 661, 34 L. R. A. 492, 58 Am. St. where such damages are allowed is "grief Rep. 609, 37 S. W. 904. If under the law and mental anguish.” We do not find any. of Maryland, as interpreted and expounded where that damages are allowed for “disapby its highest court, damages on account of pointment and regret.” The lexicographers mental anguish, not connected with or define anguish to be “intense pain of body growing out of a physical injury to the or mind.” It is derived from the Latin plaintiff's person, could not be awarded, word anguis, a snake, referring to the wriththen the plaintiff in this action can recover ing or twisting of the animal body when in only the costs of the telegram and costs. great pain. Stornmouth's Dict. Mr. JusWhere, as on the trial had in this case, the tice Douglas, speaking for the court, said: defendant relied upon the testimony of an "We use the word 'anguish' as indicating a attorney at law in Maryland, who testified high degree of mental suffering, without by deposition as to what he believed the law which the plaintiff should not recover subof that state to be, the court very properly stantial damages. Mere disappointment submitted to the jury the testimony to be would not amount to mental anguish, or passed on by them as to its credibility and entitle the plaintiff to more than nominal value. If the jury render a verdict in any damages.” Hunter's Case, 135 N. C. 459, case contrary to the clear weight of the evi. 47 S. E. 745. The addition of the word dence, the remedy is, and it is the duty of “regret” by his honor does not help the the trial judge, to set it aside; but we cannot matter. Regret indicates no greater degree