McKane v. McKane

• Court: Maryland Supreme Court
• Writing for the Court: ADKINS, J.
• Citation: McKane v. McKane, 152 Md. 515, 137 A. 288 (Md. 1927)
• Decision Date: 04 March 1927
• Docket Number: 7.
• Parties: MCKANE v. MCKANE.

137 A. 288

152 Md. 515

MCKANE v. MCKANE.

No. 7.

Court of Appeals of Maryland

March 4, 1927

Appeal from Circuit Court, Washington County; Frank G. Wagaman Judge.

"To be officially reported."

Suit by Sarah Catherine McKane against Charles R. McKane, who filed a cross-bill. From a decree dismissing the cross-bill and granting the relief prayed by plaintiff, defendant appeals. Reversed in part, and affirmed in part.

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

Oswald & Oswald, of Hagerstown, for appellant.

John E Wagaman and Harper Ballentine, both of Hagerstown, for appellee.

ADKINS J.

This is a suit for limited divorce by Sarah Catherine McKane appellee, against her husband, Charles R. McKane, the appellant, in which a cross-bill was filed by him asking for the same relief. In the bill the ground alleged is excessively vicious conduct and abandonment and desertion, and in the cross-bill the charges are the same, and, in addition, cruelty. In the answers filed, each party denies the allegations of the other.

The learned chancellor dismissed the cross-bill and granted the original plaintiff the relief prayed in her bill, and fixed the alimony at $70 a month. This appeal is from that decree.

The parties have been married about 25 years. At the time of the marriage, Mrs. McKane had an infant son, of whom defendant was not the father, but who lived with them after the marriage. At the time of the separation, a niece of plaintiff, Marjory Brown, about 13 years old, was also staying with them.

The defendant for about 33 years has been a freight conductor of the Western Maryland Railroad Company. At the time of the trial, he was earning from $200 to $280 a month. His pay checks, or the proceeds thereof, were regularly turned over to his wife for family expenses, he keeping for himself only $6 a week to pay his board while on the road. His work required him to be away from home from Monday morning till Saturday evening. The house in which the family lived was paid for, half by defendant and half by plaintiff's son, and title was taken in the name of the son; it being understood that it would be a home for them all.

There is no evidence of abandonment by defendant, and the chancellor so found.

The wife's charge is that the husband had "spells" about once a month, while at home from Saturday evening till Monday morning, caused by drinking, and that on these occasions he called her vile names, implying lack of chastity on her part, cursed her, pouted, and refused to eat the food she prepared for him; that the trouble began almost immediately after their marriage and continued, especially during the last 15 years, with seldom more than a month's intermission; that after these quarrels he would frequently move his clothes and stay away for several weeks. She said:

"It simply gave me a nervous breakdown, with the continual cursing me, not eating, and leaving home. I had the doctor. Every month or so I had to have the doctor on account of my nerves; it simply worked on until my nerves gave way."

There is some corroboration of plaintiff's testimony as to cursing and the use of vile and defamatory epithets, once shortly after the marriage, another time about 15 years ago, and again at the time of the separation in May, 1926; also as to his leaving home several times; also as to defendant's drinking at least on two occasions. He admits that he took a drink occasionally when he came home tired, but denies that he ever drank to excess. There is none as to his refusal to eat. And there was no testimony, except that of plaintiff, to indicate that these outbreaks were of monthly occurrence. But, even if they were, that does not constitute excessively vicious conduct within the meaning of the statute, nor cruelty of treatment in the legal sense.

In Harding v. Harding, 22 Md. 337, the husband, during the period of confinement of his wife, charged her with adultery, and, while she was unable to leave her bed, told her he would not permit her to remain in his home, that she must leave as soon as her confinement was over. " This conduct," the court said, "was accompanied with allegations of the gravest and most serious character, impeaching the virtue and chastity of the appellant, and charging that her child was not his, but the offspring of another man. " This court found that there was no evidence to justify this suspicion. But it concurred in the opinion of the trial court that the charge of cruelty made by the bill was not supported by the evidence, citing Daiger v. Daiger, 2 Md. Ch. 335, and Coles v. Coles, 2 Md. Ch. 341, in which Chancellor Johnson, adopting the principles established in the English ecclesiastical courts, and quoting the language of Chancellor Kent, in Barrere v. Barrere, 4 Johns. Ch. (N. Y.) 187, laid down the rule that "mere petulance and rudeness, and sallies of passion may not be sufficient. " "There must be a series of acts of violence, or danger of life, limb, or health to justify the court in separating the parties."

And in Shutt v. Shutt, 71 Md. 193, 17 A. 1024, 17 Am. St. Rep. 519, where gross and revolting language caused by intoxication was relied on as constituting a case of excessively vicious conduct, Judge Alvey said:

"But all this conduct was that of an unfortunate woman who had become addicted to the habit of occasional intoxication, and the proof shows that it was only when she was under the influence of strong drink that she was guilty of the gross improprieties referred to in the evidence. And, however deplorable this state of things may be, it is quite certain that the courts cannot interfere to furnish relief against all the troubles and distresses that may exist in the matrimonial relation."

And the bill was dismissed.

The latest expression of this court was in Short v. Short decided...