146 A. 266 | Md. | 1929
This appeal is from a decree of the Circuit Court for Baltimore County, dismissing appellant's bill of complaint, in which he prayed that he might be divorced a vinculo matrimonii from the appellee on the ground that she had abandoned him, and that such abandonment had continued uninterruptedly for more than three years.
The appellant, George H. Bowersox, in his bill alleged that he was married to the appellee Ellen Bowersox on February 19th, 1925, that at the time of the marriage he was fifty-nine and she sixty-eight years of age, that after the marriage at her request they went to live in her home, and had lived together there for but a few weeks when she began to treat him with great cruelty and harshness, that she refused to cohabit with him, that finally her conduct became so intolerable that he was forced to leave her home, that since June, 1925, they had not lived together or cohabited, and that their separation was deliberate, final, and without hope of reconciliation.
The defendant, although duly summoned, failed to appear, and, on December 4th, 1928, a decree pro confesso was entered against her, and the case referred to an examiner for testimony. On January 4th, 1929, the examiner returned the testimony which he had taken, but, the court being of the opinion that that testimony was not sufficient to support the bill, it was referred back to the examiner, more testimony *478 was taken, and, on March 1st, 1929, that testimony also was returned.
An examination of all the testimony shows that four witnesses were sworn for the appellant, and, in valuing their testimony, it may be noted that the hearings were ex parte, and that the vital and controlling issue in the case was whether the conduct of the appellee justified the appellant in leaving her. The only direct testimony relating to that issue was that given by the appellant himself, which tended to prove these facts.
At the time of the marriage Bowersox was a widower, and his wife had been twice married and twice divorced. Although he had a home of his own, to gratify her and at her request he went to live at her home. Their first trouble occurred some three months after their marriage, when without any apparent reason she left his bed and refused and persisted in her refusal to further cohabit with him. From that time until he left she slept apart from him, neglected his comfort, subjected him to a continuing series of petty inconveniences and annoyances, and even threatened to have her son "beat" him "up." Finally, to quote the witness: "On the 21st day of June, 1925. I was sick that morning — felt very bad with a cold, and I laid in bed until seven o'clock, and she slammed every door downstairs. I finally got up and went downstairs. There was no fire, and I asked her how about a little breakfast, and she told me if I wanted any breakfast to get it myself. I looked around and there was nothing to eat there, so I went upstairs and packed up my clothes and went out. I went to my son-in-law's. Q. You have never lived with her since June, 1925? A. No. Q. Do you think there is any possibility of a reconciliation between you and Mrs. Bowersox? A. No, sir; never will be. Q. Did she ever make any complaint to you about your not treating her right? A. No, sir. Q. How did you treat your wife? A. I did everything in the world for her. Everything she asked me to do, I tried to do for her. Q. You gave her money to supply her wants and household expenses? A. Yes; she *479 got her regular supply every week and if she wanted any extra money she got it. Q. Judging from the manner in which you say your wife acted toward you, it would appear that she is a very peculiar woman. What do you think about that? A. She was a very peculiar woman and the way she acted it seemed to me that her mind must have been a little weak."
We will pass without comment the value of this evidence, for, whatever its weight may be, in our opinion it is not sufficient to support the bill unless corroborated. Code, art. 35, sec. 4;Dicus v. Dicus,
In Heinmuller v. Heinmuller,
Excluding all hearsay testimony, the only evidence left which tends to corroborate the plaintiff's testimony is that he and his wife lived apart for over three years, and that at times he seemed to be "worried," "downhearted" and "depressed." But while, as stated in Heinmuller v. Heinmuller, supra, in actually contested cases slight corroboration is sufficient, this is not a contested case, and the facts referred to do not furnish even "slight corroboration." For the naked fact that the appellant lived apart from his wife was not in itself sufficient to charge her with responsibility for the separation, nor is it a necessary legal inference that wives are in all cases accountable for any "worried," "downhearted" or "depressed" appearance which their husbands may on occasion exhibit.
And since the complainant was not entitled to a divorce upon his own uncorroborated testimony (Dicus v. Dicus, supra), and as it was not sufficiently corroborated by any competent evidence, the bill of complaint was properly dismissed, and the decree appealed from will be affirmed.
Decree affirmed, with costs.