21 Haw. 339 | Haw. | 1912
OPINION OP THE COURT BY
The appellant instituted a suit for divorce against her husband alleging extreme cruelty. The parties were married on the 11th day of October 1911. The complainant testified, and she was corroborated at several points by other witnesses, that her brief married life was marred by a series of rows with her husband which began in the third week of that month and ended on April 3rd, 1912 when the parties separated; that her husband often used coarse and vulgar language to her and called her vile names, and that his attitude toward her and his treatment of her, even in the presence of others, was coarse, rude, fault-finding, and ill-mannered; and that he often said that he wished he had married another, girl with whom he was acquainted. The complainant also testified that on two occasions, January 28th and February 7th, her husband slapped her face; that on April 2nd he told her that he wanted to go and live with his parents for a while so that his mother could give him treatment for some physical ailment with which he was troubled, and wished her to accompany him; that she refused to go because she was afraid of his father, and she offered to give him the treatment he needed herself; that he said she was not able to treat him and, leaving her, went to his parents’ place; that the next day he returned home and told her that he had no further
Under our former practice, when jurisdiction over divorce matters was exercised by the circuit courts and cases were reviewed by this court upon exceptions, it was held in a long line of cases that a decree in a divorce case had the effect of a verdict of a jury and could not be reversed as being contrary to the evidence if there was evidence to support it. But since the act of 1903 (Act 22 Session Laws of 1903) which transferred the jurisdiction of divorce cases to the circuit judges at chambers, divorce decrees have been reviewed upon appeal, and the entire testimony is examined as in appeals in equity suits. In such eases this court draws its own. conclusions as to the facts from the evidence adduced, though in cases depending wholly or largely upon the credibility of witnesses and the weight of testimony much weight is accorded to the findings of the trial judge who saw the witnesses and heard them testify. In the case at bar the trial judge made no specific findings of fact, but, as above shown, after denying a motion to dismiss at the conclusion of the complainant’s case, he dismissed the libel, after listening to the defense, upon the general ground that a case of extreme cruelty had not been established. He evidently believed the testimony of the defendant. Except as to admitted facts, and those put in evidence by the complainant which were not expressly contradicted, the case rests upon the credibility of the witnesses and the weight to be attached to their testimony. Counsel for the appellant contends that upon the undisputed facts alone a case of extreme cruelty was shown and
What will constitute extreme cruelty depends so much upon circumstances that no definition capable of application to all cases can be framed. The usual test is physical injury, either actual or apprehended. Bartlett v. Bartlett, 13 Haw. 707; Bruns v. Bruns, ante, p. 284. It is quite generally agreed that to constitute extreme cruelty there must be such violence or such a course of conduct as tends to endanger life, limb or health, or create a reasonable apprehension of such result, thus rendering continued cohabitation unsafe. 1 Bishop, M. & D. (6th ed.) Sec. 717. In Massachusetts “extreme cruelty” and “cruel and abusive treatment” is held to be such “as shall cause injury to life, limb or health, or create a danger of such injury, or a reasonable apprehension of such danger.” Bailey v. Bailey, 97 Mass. 373; Cowles v. Cowles, 112 Mass. 298. And that where the evidence relied on is that of blows given on a single occasion the violence must be of such a character as to endanger life, limb or health, or as to create a reasonable apprehension of such danger. Ford v. Ford, 104 Mass. 198, 206. In Beyer v. Beyer, 50 Wis. 254, it was held that a single assault and battery constitutes cruelty when committed under circumstances which indicate that the defendant has so little control over his passions that he will be likely to repeat personal violence on any provocation. In Albert v. Albert, 5 Mont. 577, the court said, “We think one beating or whipping of a wife by her husband sufficient to establish the charge of extreme cruelty. * * * * It is extremely cruel for a husband to beat or whip his wife even once. Mere words can never afford any provocation or excuse for such an act; no words can justify an assault.” If the court meant to imply that a single blow given upon the provocation of words alone will always amount to extreme cruelty the ruling is inconsistent with the generally accepted view of extreme cruelty and is contrary to the weight of authority. It is a
Whether a single act of violence is sufficient to constitute extreme cruelty will depend, therefore, upon the character of the violence, whether it is slight or serious, and upon the presence
The decree appealed from is affirmed.