102 Va. 235 | Va. | 1904
delivered the opinion of the court.
The wife, under Pule IX., assigns as cross-error that the court erred in rendering a decree of separation from bed and board, and asks to have the decree to that extent reversed.
The husband attempted, in part, to sustain the allegations of his bill by introducing witnesses who knew little or nothing about the conduct of the parties toward each other. These witnesses testified, from their knowledge of the character or reputation of the parties, that they did not believe that the husband could with safety 'cohabit with his wife.
Such evidence is not admissible. The general rule is that witnesses must state facts, not opinions. In order to entitle the husband to a divorce, it was necessary for him to prove facts from which the court could determine, or legally infer, that the fact in issue had been established. Whether or not the husband was in danger of bodily injury from his wife was a question for the court, upon all the facts proved. 2 Bish. on M. & D., sec. 769. Richards v. Richards, 37 Penn. St. 225.
The evidence introduced by both parties is of the most unsatisfactory character. The witnesses, who lived in the home
It appears that the parties, who had been married for ten years or more, had for two or three years before the institution of this suit, lived very unhappily. Both parties, as one of the husband’s witnesses testifies, and as is apparent from the record, were in fault. The wife, however, much more than the husband. The evidence shows that she is a woman of violent temper and quarrelsome disposition; that occasionally, in fits of passion, she had threatened to take the husband’s life, and had once or twice slapped him in the face with her hand; but it does not show satisfactorily that she had attempted or really intended to do her husband bodily harm, or that he had reasonable ground to apprehend danger of life, limb or health. Though the complaint of cruelty or fear of bodily harm usually comes from the wife, yet the husband is entitled to protection if he really needs it (2 Minor’s Insts. 281-’2 and cases cited) ; but in either ease the charge should be clearly proved, for marriage is a contract formed with a view, not only to the benefit of the parties themselves, but for the benefit of their offspring, and the moral order of society, and should not be dissolved in whole or in part unless the ground for it is satisfactorily made out. 2 Bish. M. &. D., sec. 762.
Heither does the evidence sustain the wife’s claim for alimony. She was more to blame than the husband for the unhappy manner in which they lived. She provoked, by her misconduct, the alleged mistreatment upon which she relies for alimony. To give her alimony under the facts of this case would be to reward her for her own wrongdoing. It may be that the parties cannot live happily together, but that is no sufficient reason for granting to either the relief sought.
We are of opinion that neither party is entitled to the relief sought, and that the decree complained of must be reversed and the bill dismissed.
Reversed.