72 W. Va. 789 | W. Va. | 1913
Plaintiff, a man then about thirty-five years of age, who had never been married, and defendant, a widow, about fifty-five years old, with three children, were married in June, 1902, and managed to live together until October, 1907, when separation took place by his leaving the home. This suit by him for divorce followed quite promptly after the expiration of three years from the day of separation.
Wilful desertion, adultery and cruel and inhuman treatment are charged in the bill, as grounds for divorce a vinculo, and there is some evidence tending in some slight degree to support these charges.
The offending spouse notwithstanding the grave charges against her graciously refrained from answering or making any defense to the bill, and allowed her complaining husband to have everything to his own liking, in both pleadings and proof, until on final hearing, he met foul weather, so to speak, by an adverse decision, the court below denying him any relief and dismissing his bill, wherefore his appeal.
There is no sufficient evidence to support the charge of adultery, only suspicious circumstances are shown, not amounting to proof of the fact. According to the testimony of plaintiff and his other witnesses, including two house servants, Mrs. Dawkins liked her beer, which she ordered freely on Saturday nights, and during the other days of the week is said to have “rushed the growler” frequently. The suspicious circumstances
Desertion and cruelty are charged in the bill in the most general terms. No facts are pleaded constituting desertion or cruel and inhuman treatment. The grounds for divorce specified in the statute are rather as conclusions of law, than specifications of the facts. There is contrariety of judicial decisions as to whether good pleading does not require that the bill or complaint should set forth the specific acts and conduct constituting the ground of divorce specified in the statute, and relied on. In some states the statutes control; in others the subject of the pleadings is uncontrolled, except by general rules applicable in all cases. In 14 Cyc. 669, the text is: “The complaint should aver the existence of the facts essential to constitute desertion or abandonment, as those offenses are defined in the particular state.” Citing the cases in notes. In 7 Ency. PL & Prac. 76, it is said: “Desertion or abandonment is usually alleged.in the terms of the statute. Bnder the codes, however, the practice is objectionable as alleging conclusions of law, and the safest course is to allege the separation of the parties and the facts which caused it with sufficient minuteness to show that the defendant abandoned the plaintiff without reasonable cause, and remained absent for the statutory period'.” Citing the cases. In Virginia one recent case, Miller v. Miller, 92 Va. 196, a suit based on alleged adultery, the Virginia court held a bill bad on demurrer which simply charged adultery without stating time, place and circumstances.
But we think it unnecessary to decide this question of pleading, for treating the bill as good and justifying relief, if proven, we do not think the evidence makes out a clear and certain case for divorce, on any ground.
Outside of some alleged intemperate language towards plaintiff, the only evidence of cruel and inhuman treatment is that of the plaintiff himself, and as was said under the same circumstances, in Tillis v. Tillis, 55 W. Va. 198-9, we think “that is too short.”
Beferring to the time of the separation, plaintiff' says, “she ordered me out of the house and told me not to come back any more, and she was so quarrelsome that I could not live with her.” Asked what lead up to this separation he answered: “Every time I would go into the house or around where she was at she was all the time calling me names and quarreling with me, and hit me with a spit-doon and broke that over me, and hit me with a chair, and in fact the last two years we lived together she did not speak a pleasant word to me, and would not let me sleep in the same bed that she slept in, in fact she de
Mrs. Bessie Hill, .a next door neighbor, who claims to have witnessed the final separation in October, 1907, and the only witness sworn, besides plaintiff, to that transaction, says’: “Q. Did you hear what was said by these parties just before they separated ? A. I heard what was said out on the porch, Mrs. Dawkins gathered up Mr. Dawkins’ clothing set them out on the
Hpon the whole record we are disposed to affirm the decree below, the evidence not being of that clear and convincing character justifying a court in dissolving the marriage bonds.
Affirmed.