Griest v. Griest

• Decision Date: 02 February 1928
• Docket Number: 87.
• Citation: 140 A. 590,154 Md. 696
• Parties: GRIEST v. GRIEST.
• Court: Maryland Court of Appeals

140 A. 590

154 Md. 696

GRIEST v. GRIEST.

No. 87.

Court of Appeals of Maryland

February 2, 1928

Appeal from Circuit Court, Harford County; Walter W. Preston, Judge.

"Not to be officially reported."

Suit for divorce by Mary Kelly Griest against Harold E. Griest. Decree for plaintiff, and defendant appeals. Affirmed.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT DIGGES, PARKE, and SLOAN, JJ.

Frederick Lee Cobourn, of Havre de Grace, for appellant.

Robert H. Archer, of Baltimore, for appellee.

ADKINS J.

The parties to this suit were married in 1917. The wife came to this country from Scotland in 1910. She seems to have brought with her the proverbial Scottish disposition for thrift and dislike for improvidence. The husband, on the other hand, was apparently not above the American average in the possession of these traits. Besides, there was a great disparity in their ages, he being 18 and she 38, at the time of their marriage. At that time she was working as a domestic in Havre de Grace. After the marriage, they lived for a year at Coatsville, Pa., and then returned to Havre de Grace, where he obtained employment in the service of the United States government at Perryville and the Aberdeen Proving Grounds. He was discharged for loafing.

Later he engaged, with her financial assistance, in the acetylene business, in which he was unsuccessful. He then, again with her financial assistance, opened a barber shop. This was in 1919. He seems to have prospered in that business, making about $50 a week. But from that time there appears to have been a change for the worse in their marital relations, and the difficulties increased until, on February 1, 1925, they had a row, which resulted in her leaving their home. This home was an apartment over the barber shop. Two children were born of this marriage, one of whom died, and the other, a boy, was 7 years old at the time of the taking of testimony in September, 1926.

The bill of complaint filed by the wife on February 23, 1925 alleged cruelty of treatment by the husband, and prayed for a divorce a mensa et thoro, and asked for the custody of the child. The answer denied the charge of cruelty, and attributed the marital unhappiness to the nervous and irritable temperament of the plaintiff. It admits that during some of the quarrels defendant did take hold of the plaintiff in order to keep her from injuring or doing violence to herself or to him, but denies that he ever hit her with his fist, or used any more violence than was necessary to restrain her and avers that "the principal cause of the differences of the parties is that the complainant has no love for your respondent; that the complainant is 46 years of age, and your respondent 26 years of age, and sexual intercourse with your respondent has become intolerable to her, so much so that she has many times refused to enter into sexual relationship with your respondent, and all of the quarrels and differences of the parties have had their origin in her refusal to cohabit with your respondent, as aforesaid."

Testimony was taken in open court partly before Judge Harlan before he retired and partly before Judge Preston. In an opinion filed by Judge Preston, he said he had heard some of the testimony and carefully read over all of it, and was of the opinion that the allegations of the bill had been substantially proved, and that the complainant was entitled to the relief prayed. And he signed a decree granting the plaintiff a divorce a mensa et thoro, and requiring the defendant to pay plaintiff $9 a week alimony for the support of herself and their infant child, and directing that the defendant "be permitted to see the infant child of the parties hereto at such reasonable times and places as may be consistent with the rules and regulations of the institution in which said child is now living"; and providing that this court "shall retain jurisdiction over said infant child, and may, if the circumstances warrant, amend so much of this decree as pertains to the said defendant visiting said child, and the amount of alimony allowed."

This appeal is from that decree. Appellant asks for a reversal on two grounds: (1) That the testimony of plaintiff is not sufficient to support the decree, even if corroborated; (2) that her testimony is wholly uncorroborated.

The testimony of plaintiff bearing directly upon the allegation of cruelty was as follows:

"Q. During this time how was he treating you? What was his treatment toward you? You say he treated you all right until 1919, and this was after that? Ans. He cursed me.

Q. What did he call you? Ans. He would call me a son of a bitch, old whore, and tell me to get the hell out of there.

Q. What else would he do? Ans. He would use my body.

Q. What did he do, strike you? Ans. Yes, sir.

Q. What did he strike you with? Ans. His hand.

Q. Did he ever strike you in the face? Ans. Yes, sir.

Q. How often did he do that? Ans. Three times that I remember.

Q. On these occasions, when he beat you, did you see a doctor? Ans. Yes, sir.

Q. What doctor? Ans. Dr. Steiner.

Q. At the time you went to the doctor, what were you suffering from? Ans. I got bruised from here to here (indicating), where he punched me.

Q. Dr. Steiner has testified that you had bruises on your face or forehead. Ans. Over this eye (indicating).

Q. What caused that? Ans. He struck me with his hand.

Q. In your eye? Ans. Yes, sir.

Q. When did you finally leave him? Ans. February 1, 1925.

Q. Why did you leave him? Ans. Because he ordered me out. He had always done that, but not as bad as that night, when he offered to pitch me out of the window.

Q. He ordered you out, and threatened to throw you out of the window? Ans. Yes, sir.

Q. Did he threaten your life? Ans. Yes, sir.

Q. How many times? Ans. Two or three times.

Q. What did he say? Ans. He said he would kill me or shoot me.

Q. Why did you leave him then--were you afraid, or what? Ans. He abused me."

On cross-examination plaintiff admitted that defendant was industrious and generally attentive to his work; that he brought his earnings to her, and she kept them in a box to which both of them had access; that he was generally, though not always, kind to the boy. She explained that the disturbance on Sunday afternoon, the day she left, was at about 4 o'clock, just after dinner. The family had been out in the car since noon. The dispute arose because defendant wanted to go somewhere she did not think he ought to go. "He had been sullen all day, and he had never cleaned up. He was going out just as he had come from the barber shop the night before. He had never washed or done anything that day, and I knew there was something wrong, but I didn't know what it was." She admitted that she would strike back when he struck her, and would call him whatever names he called her. Said she did not strike him on February 1, 1925, "not that I remember"; that there were two other occasions when he struck her. One was on the Thanksgiving Day before. When asked if she struck him that day, she answered:

"I don't remember striking him. I was too much afraid of him to strike him."

Asked the cause of the trouble on Thanksgiving Day, she answered:

"I just happened to look at him, and, as always, he imagined I was going to do something to him or say something to him, and he got up and came over and hit me."

She was unable to recall the date or the occasion of the other time he struck her, but fixed it some time between the other two. She complained of his insistence upon unreasonable sexual relations; said this occurred every night, and that he would come up from the barber shop in the daytime for the same purpose.

"Q. And that was the cause of all your troubles, wasn't it, Mrs. Griest? Ans. No, sir; not all of them.

Q. Principally the cause; and, outside of the quarrels and troubles you had over these things, this boy was a fairly average and decent fellow in his treatment of you, wasn't he? Ans. Yes, sir; except in one case. After I left, I went back for some of my belongings--of course I didn't know this before--I said to him, 'Harold, I could have forgiven you all the abuse; but, when told by people on the street that you were taking out other women, and being with other women, that was the worst blow.' "

She said the reason she objected to his going out was that she thought he was going out to gamble; that he had told her he did it and of his losing money.

Asked if, when she came back after her clothes, he said anything to her about her remaining, she said, "no."

"Q. Didn't he tell you that day to come back, and on another occasion didn't he also tell you to come back--not to take your things out of the home? Ans. No, sir. When I took Mr. Fadeley there with a warrant, he was afraid to strike me. Mr. Fadeley stood between us, and asked what was the use of doing all this; and he said to me, 'It would be in the interest of this little boy for you to stay, Mrs. Griest,' and Mr. Griest said, 'There is no use talking about it.' " Mrs. Catherine A. Ferguson, a witness for plaintiff, said she was at the Griest home frequently, and Mrs. Griest "always treated him fine." She was never present at any of their altercations. She went back to the house with plaintiff to get her things after she left, and he started to fuss with her just as soon as she went in. "He started to cussing about some things." "He said she would not do with him as he wanted her to do." On one occasion in August, 1924, he took witness to the proving grounds, where her husband got hurt. "He had the little boy, and he said he had been taking a lot of his lady friends out, and he was afraid the child would tell his mother. He also told me he didn't care for her--that it was her money he was after."

Roy J Brown...