Hawkins v. Hawkins
| Decision Date | 10 March 1886 |
| Citation | 3 A. 749,65 Md. 104 |
| Parties | HAWKINS v. HAWKINS. |
| Court | Maryland Court of Appeals |
Appeal from the circuit court for Baltimore county.
Thomas W. Hall, for appellant.
John I. Yellott, for appellee.
The bill in this case was filed by the appellant, the wife against the appellee, the husband, to obtain a divorce a mensa et thoro upon the ground of alleged cruelty of treatment, and excessively vicious conduct on the part of the husband. The plaintiff, by her bill, also prays to be awarded the care and custody of her children, and the separate and exclusive control and benefit of her property. The bill was filed on the twenty-second of May, 1884, and it alleges that the parties were married on the twenty-ninth of April, 1876 and that four children have been born of the marriage, and which children, it appears, reside with and are cared for by the mother. The bill charges that the plaintiff has, upon repeated occasions since her marriage, been subject to and made to suffer from the cruel personal violence inflicted upon her by the defendant; and so cruel and vicious had become his treatment of her that the same was no longer bearable; and that by reason of such past misconduct of the defendant, and his repeated threats to do violence to the plaintiff, the latter is in great fear of further bodily injury being inflicted upon her, if not relieved by the courts.
The defendant answered the bill, denying all the charges of cruel treatment and excessively vicious conduct on his part, and severely recriminates by charging "that he has, for a period of eight years, suffered and endured with patience and forbearance insults, outrages, personal and bodily violence, and a course of cruel and unfeeling conduct inflicted upon him, and pursued towards him, by the plaintiff;" that the plaintiff had assaulted him on divers occasions with knife and pistol, and time and again driven him from his home at all hours of the night, and compelled him to seek shelter and food in a neighbor's house, or take his rest in a barn on the premises, or elsewhere about the farm; and that he was induced to bear all such cruel treatment from the plaintiff from a sense of Christian duty, and a desire to avoid bringing scandal upon his home. These general allegations are followed up by a large enumeration and specification of occasions and circumstances to show the manner in which the defendant had been treated by his wife. And if we were required to decide the case simply upon the mutual accusations of the parties, we should have no alternative but to dismiss the plaintiff's petition upon the ground that, by reason of her own wrong and dereliction of duty to her husband, she could have no standing in court. But the case must be decided upon the proof, and not the mere allegations of the parties; and while the proof produced certainly disclosed a state of domestic discord and strife distressing to contemplate, yet it fails to establish the truth of the severe recriminatory charges of the husband, though it certainly does show that the wife is not without blame.
The testimony is voluminous, and much of it is conflicting in its details. It comes largely from the domestic servants who were employed about the house of the parties during the time of their cohabitation. Some of these witnesses manifest a decided bias for the party producing them, while others testify with more apparent fairness, and without showing any decided feeling for the one side or the other. And while the testimony of such witnesses cannot be repudiated altogether, it must be considered with caution, and taken always with due allowance, according to the bias displayed for the party in whose behalf the witness testifies. In cases like the present, it is from necessity that the testimony of such witnesses has to be resorted to; for ill usage of the kind imputed in this case is of a domestic nature, and does not generally occur in public, or in the open face of day. As we said in the case of Westmeath v. Westmeath, 2 Hagg. Con. 74, it generally takes place in secret, sometimes in the retirement of night. Servants, more especially those about the wife's person, are alone likely to witness those acts. Even by them the acts themselves are not very frequently seen, and can only be inferred from the accompanying circumstances, or the resulting consequences, or be proved by the husband's acknowledgment. Where, therefore, the testimony of such witnesses is apparently given with reasonable fairness, and especially if they are confirmed in their statements in regard to facts capable of corroboration, there is no reason why they should not receive credit, even upon circumstances incapable of extrinsic confirmation. In this case, however, we are not altogether dependent upon the testimony of domestic servants for proof of some of the most material facts involved. There are other witnesses in the case, and some of the most material facts are either disclosed or confirmed by them.
The statute (Code, art. 16, § 26, as re-enacted by the act of 1872, c. 272) making cruelty of treatment and excessively vicious conduct distinct causes for granting divorces a mensa et thoro, furnishes no definition of what will constitute cruelty of treatment, or excessively vicious conduct, to bring the case within the purview of the law; and, the statute thus failing in the definition, we are required to resort to judicial precedent and definition to ascertain what state of facts will authorize the granting of the relief for the causes mentioned. And the rule to be gathered from all the authorities that furnish safeguards upon this delicate subject is that the ground of complaint must be grave and weighty, showing to the entire satisfaction of the court the existence of such a state of things as renders it impossible that the duties can be discharged. Where the complaint is of cruel treatment, the mere austerity of temper, petulance of manner, rudeness of language, a want of civil attention, even occasional sallies of passion, if they do not threaten bodily harm, do not constitute such cruelty of treatment as to warrant the court in pronouncing a decree of separation. But a series of acts of personal violence, or a menace to the safety of life, limb, or health, or any determined threats of serious bodily harm, have always been held sufficient ground for a separation by the common law, and that is the law to which we must apply upon this subject. Barrere v. Barrere, 4 Johns. Ch. 189. Here we do not understand the counsel for the plaintiff to insist that there is any such evidence of excessively vicious conduct on the part of the defendant, within the meaning of the statute, as to entitle the plaintiff to a decree for separation on that ground alone; but they do insist that the charge of cruel treatment of the plaintiff is amply supported by the evidence, and this court is of opinion that such contention is well founded.
The evidence shows that both parties have great infirmities of temper. The plaintiff, with apparently strong attachment for her husband, had become morbidly jealous, and was very exacting of him, and disliked exceedingly his leaving her for any other society or pleasure, and the strong manifestation of this disposition on her part naturally produced irritation and petulance on his. Then, too, his management of her property, and the control and authority exercised by him, not perhaps always with exact moderation, over her children, and especially the child by her former husband, were often subjects of strife between the parties; and unfortunately upon some of these occasions the husband yielded to what would appear to be an ungovernable temper, and did what the law does not justify a husband in doing, and that is, inflict violent and personal injury upon his wife.
The defendant is spoken of by one of his witnesses, his brother-inlaw, the Rev. Mr. Hunter, as a radically good man with a thousand infirmities and faults; and among his faults he speaks of his habit of drinking, and that the plaintiff had represented to him, the witness, that the defendant drank excessively. He says: "I had some fear that he did drink somewhat injudiciously, to the prejudice of his health, and I consulted an eminent physician of Baltimore, who expressed the opinion that a man of his temperament would better abstain entirely." What particular effect this unfortunate habit may have had in exciting and bringing about the domestic broils and conflicts described by some of the witnesses is not distinctly shown; but it may be safely assumed that such habit was not without its malign and disturbing effect upon the domestic relations. Of the repeated altercations between the parties it is not easy to determine from the evidence who was originally most in fault but no abusive or reproachful words by the wife will justify the husband in assaulting and beating her. And, putting aside all doubtful testimony, there still remains abundant evidence to show that the defendant did inflict blows upon his wife with a buggy whip, and with such severity as to leave the marks of the blows upon her person. It is clearly shown that, upon another occasion, he seized his wife by the hair of her head, and dragged her from one room to another, if he did not in fact inflict other and severer blows upon her at the time, according to the testimony of some of the witnesses. These occurrences are not only testified to by eye-witnesses examined on the part of the plaintiff, but the narratives of those witnesses have received strong corroboration in the testimony of witnesses examined for the defendant himself. In addition to this, we have the defendant's own acknowledgments to the fact of having inflicted violence upon his wife, made, in the one...
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