Collins v. Collins

• Decision Date: 17 May 1945
• Docket Number: 39.
• Citation: 42 A.2d 680,184 Md. 655
• Parties: COLLINS v. COLLINS.
• Court: Maryland Court of Appeals

42 A.2d 680

184 Md. 655

COLLINS v. COLLINS.

No. 39.

Court of Appeals of Maryland

May 17, 1945

Appeal from Circuit Court, Allegany County; Walter C. Capper, Jr. and William A. Huster, Judges.

Suit for divorce a mensa by Irene E. Collins against William V Collins, wherein defendant filed a cross-bill for divorce a mensa. From a decree for complainant, defendant appeals.

Affirmed.

Clarence Lippel and D. Lindley Sloan, both of Cumberland, for appellant.

Edward J. Ryan, of Cumberland, for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, MELVIN HENDERSON, and MARKELL, JJ.

MARKELL Judge.

This is an appeal, filed November 9, 1944, from a decree dated September 13, 1944, granting the wife (plaintiff, appellee) a divorce a mensa, with custody of children and fifteen dollars per week for 'maintenance and support' of herself and the children, the wife 'likewise to have the use of the home premises,' and dismissing a cross-bill of the husband (defendant, appellant) for a divorce a mensa. By an order dated October 7, 1944 the decree was amended by increasing the 'alimony' to twenty dollars per week it was 'further amended' by a decree dated November 14, 1944, as to alimony (to eighty dollars per month) and custody of the children.

The parties were married on September 17, 1937, in Monterey, Virginia. They have three children. At the time of the hearing, in July, 1944, he was 31, she was 32, the children 5, 4 and 2 respectively. He operates a garage on the Baltimore Pike near Cumberland, and operates five school buses under contract for the County. He also sells farm machinery as an agent. Before their separation they lived, with the children, in a house owned by them as tenants by the entireties, on the Baltimore Pike, about four miles from Cumberland. His mother, brother and sister live on a farm at Rawlings about twelve miles from Cumberland in another direction.

The husband says the wife was 'disappointed' in him shortly after their marriage. For about six years, however, they lived together peaceably and not unhappily.

Since the summer of 1943 the home was 'most unhappy.' About that time she began to suspect him of 'running around with women,' when he went out in the evening, dressed in his best clothes, to see farmers, as prospective customers. One night, she says, he 'disillusioned' her. He took her with him, but 'forgot' the name of the man he was to see and consequently had 'nowhere to go.' After that she 'mistrusted' him. Another night, she says (he denies), she found a handkerchief with lipstick on it in his pocket. In January, 1944, in his absence, she searched his garage and found in his car some contraceptive devices. A young man who drove for him testified that he (the witness) had bought them and put them in the car 'to play a joke' on the husband, 'to kid him about running around,' but had not mentioned them before the wife discovered them.

Near Thanksgiving, 1943, the wife consulted a lawyer about grounds for divorce and about hiring detectives. She was advised that in Maryland 'mental cruelty' is not recognized but physical cruelty or adultery must be shown. She hired detectives, with money furnished by her brother, to find out whether her husband was 'running around with women.' They told her they found indications that he was. The husband denies any such misconduct. There is no evidence of adultery. On the other hand, her discoveries and the explanations she got did not tend to allay any suspicions she had.

'Arguments' and quarrels usually began and ended at home, with nobody present except the children, who sometimes were frightened to tears. In each instance each party sayd the other was the aggressor with words and deeds. There is, however, substantial corroboration, by other witnesses, concerning some episodes.

Husband and wife both say the first and last times (he says, the only times) he struck her were the evening of March 17, 1944, and the morning of June 14, 1944.

On March 17th he got home earlier than usual. She was preparing the evening meal; he was shaving; they were 'arguing about him going out and not telling her where he was going.' She says he hit her, threw her back in the corner and choked her, she got her hands in his hair till he 'left go' of her neck, but before she got out of the door she had to use a chair to protect herself. She screamed and went to a neighbor's. Her mouth was then bleeding. Later in the evening she returned. Meanwhile he had taken the children to his mother's; he returned without them. He denies the first blow, and says she 'got in his hair' and he 'squeezed' her neck.

The neighbor, Mrs. Zembower, testifies that Mrs. Collins, when she came to Mrs. Zembower's house, was crying and had marks on her neck and around her mouth, which was bleeding. Another neighbor, Mrs. Wakeman, several days later saw marks on her arms, like fingernail scratches, several marks around her neck and one above her eye. From March 17th and until March 30th, the husband and wife continued to sleep in the same house, but not in the same room, and on March 30th she left the house and did not return until April 12th.

On March 25, 1944, the wife had filed a bill for divorce a mensa on the ground of cruelty. The husband answered, denying the allegations. On April 12th, after testimony had been taken before Judge Huster, the parties became reconciled, and the case was dismissed by agreement. They returned to their home, resumed marital relations and lived together until June 14th. The wife says she was told to 'go home and be a good wife.' The husband's counsel says that at the conclusion of the testimony, 'Judge Huster gave plaintiff a severe lecture', which was not taken down by the stenographer.

In April, about a week after the hearing in the first case, the wife says the husband came home late, went straight to bed and when she got in bed, hit her in the back with his first, kicked her out of bed, and when she tried to get back, jumped out of bed and chased her out of the house in her nightgown, without her bedroom slippers. This was about 10:30. She went to the next house, Mrs. Zembower's. Mrs. Zembower gave her some clothes to go to another neightbor's to telephone the sheriff, which she did. She spent the night at Mrs. Zembower's and left the next morning about 5:30. That night she was crying, rather hysterical, Mrs. Zembower says; when she came, she said her husband had chased her from the house. She is fully corroborated as to what occurred at Mrs. Zembower's. The husband says he never heard of this incident until he heard of it in court; if she went out of the house that night, she went after he had gone to bed and came back before he got up in the morning. It was indeed a coincidence if throughout this eventful night in this troubled household he enjoyed uninterrupted sleep.

On Sunday afternoon, June 11th, he went to his mother's farm with the children and left them there. That night, after he and his wife got in bed they had an 'argument.' She says (he denies) he forced her to get out of bed by hitting her in the back. He says she got out of bed, hit him with a vanity mirror, went out of the room in a rage, got a 'gun' of his and went outside and fired it, returned to the bedroom with the gun loaded, threatened to 'exterminate' him, ordered him out of the house, and held the gun within three feet of him while he dressed and until he left. She says she did not get the gun until after he left, when she heard a noise ouside and fired out the window, the first time she ever shot a gun; that he got up and dressed while she was in the kitchen, and of his own accord left her alone. He went to his mother's. The next evening he returned. Monday and Tuesday nights they slept in the same bed.

Wednesday morning, June 14th, at breakfast, 'argument' began about a settlement. She says, he wanted to give her a settlement if she would give him the children; she would not give up her home, and he said he would force her to leave; when she refused to leave, he started beating her with his fists, and she threw some waffle dough in his face. He denies having beaten her, but says the waffle dough 'set him off' and he 'smacked her a few times,' 'hit her on the upper part of the body some place.' She ran outside and got a clothes prop, a pole about eight feet long, to protect herself. She says she intended to hit him with it if he came after her, but when he came she 'got scared', threw it down and ran, and he picked it up and pursued her. He says that when he came out of the house she followed him to his car, struck him over the shoulder with the pole and jabbed him, and he jerked the pole out of her hand and 'took after her.'

He chased her down the driveway and hit her over the head with the pole. She fell in the driveway, in the ashes, cinders and stones. He left her lying there, got in his car and drove past her; she rolled over out of the way of the car. Mrs. Zembower saw him chase her and hit her and saw her fall. Two other neighbors heard her scream and then saw her lying in the driveway.

After a time she was able to get up and get to the house. She found her head was bleeding, telephoned Dr. Trevaskis, went in a taxicab to the Allegany Hospital in Cumberland, and remained there about seven days. Before she went she telephoned Mrs. Wakeman, who came and took the children. That afternoon the husband got them and took them to his mother's. Since that day the parties have not lived together.

Before the wife went to the hospital, Mrs. Wakeman says, 'her head was bleeding. there was blood running down both sides of her head and her arms were badly scratched, looked like they had fallen on stones and blood was running out of her knees and run down to about...