Malone v. Malone

• Decision Date: 10 June 1905
• Citation: 88 S.W. 840,76 Ark. 28
• Parties: MALONE v. MALONE
• Court: Arkansas Supreme Court

88 S.W. 840

76 Ark. 28

MALONE v. MALONE

Supreme Court of Arkansas

June 10, 1905

Appeal from Woodruff Chancery Court EDWARD D. ROBERTSON, Judge.

Reversed.

Decree reversed and cause dismissed.

J. F Summers, for appellant.

A divorce will not be granted on the ground of cruel and intolerable treatment, unless the proof clearly shows that such treatment was habitual. 38 Ark. 119, 324; 53 Ark. 484. The facts in the case do not justify the decree of the chancellor. 34 Ark. 317; 53 Ark. 482.

P. R Andrews, for appellee.

There is sufficient corroboration to justify the granting of the divorce. 94 Cal. 225; 38, A. 950; 94 N.W. 765.

OPINION

MCCULLOCH, J.

Appellee filed her complaint against her husband, J. E. Malone, in the chancery court of Woodruff County for divorce on the ground that he was guilty of such conduct toward her as rendered her condition intolerable. Appellant answered, denying the allegations of improper conduct toward his wife, and also filed his cross-complaint on the ground of wilful desertion for a period of one year.

The chancellor granted the prayer of the complaint, and decreed a divorce.

The case presents only a question of fact, and, after a careful consideration of the testimony, we are convinced it is insufficient to warrant a dissolution of the bonds of matrimony, and that the conclusion of the learned chancellor was erroneous.

Appellant and appellee were married in June, 1898, he being then 21 years of age and she 32, and they lived together until some time in November, 1899, when she left him and returned to the house of her mother. Appellee testified that soon after their marriage appellant began a course of harsh and unkind treatment, frequently calling her a fool, and upon one occasion, upon a trivial pretext, slapped her in the face, and upon another, when he was sick and irritable, threatened to throw a mug at her. Her description of the latter scene is as follows: "At another time he drew a mug on me. I was out of the room, and he was sick at the time, and called me several time, and I didn't hear, and when I went to the room he began to fuss, and I told him he was like a sore-headed bear, and he drew the mug, and told me if I didn't shut my mouth he would knock me in the head with it. I told him if he did hit me with it I would leave him then and there and go home to my mother, and he said if he had a pistol he would shoot me." She further testified that she left appellant, and went to her mother in November, 1899, because she learned that he intended to leave her in a few months.

The testimony of appellee was corroborated in part by her daughter by a former marriage, who was 11 years of age, and testified to some instances related by appellee. Appellee called another witness, J. M. Daughtry, who testified that he knew the parties, lived in about two and a half miles from them, and visited at their home about every two weeks. He said he knew of only one instance of improper conduct of appellant toward his wife, which he described as follows: "I happened in when Mrs. Malone was taking up ashes. Mr. Malone made the remark, 'Why haven't you a fire? Hurry up; I am cold. I am in the notion of throwing this cup at you.' I spoke to him, and said. 'Mr. Malone, ain't you ashamed to talk to your wife that way?' and I stepped out."

This was substantially all the evidence in support of appellee's alleged ground for divorce.

Appellant testified, denying all the charges of improper conduct or harsh or unkind treatment towards his wife, except that he slapped her on account of an improper accusation which she made against him. He describes the occurrence as follows; "I became vexed, and told her she was foolish for believing such, and in discussing the matter or trying to reason with her we both became angry, and had the worst 'spat' or quarrel we ever had. I told her if she was foolish enough to believe such she should have her jaw slapped. She dared me to slap her, and I did. After having realized what I was doing, I slackened the blow, and it could not have inflicted any pain whatever." He denied that he ever struck her, or offered to strike her on any other occasion, or made a practice of calling her a fool.

Appellant introduced two witnesses, who lived near them for several...