141 A. 395 | Md. | 1928
The wife and appellant, Iva M. Proudfoot, first filed a bill of complaint for an absolute divorce from her husband and appellee, Floyd H. Proudfoot, on the ground of adultery. She also alleged cruelty. Code, art. 16, sec. 39. The answer of the husband denied the wife's charges, and retaliated with a cross-bill in which he accused her of infidelity and cruelty. The wife's answer set up the falsity of these accusations, and, the parties being at issue on both bills, they took testimony before the chancellor in open court. The husband dismissed his bill of complaint, and the chancellor dismissed the wife's on the ground that she had failed to prove her case, and the present appeal of the wife is from this decree.
There is no question of law involved in this cause, but the controversy is an issue of fact, with not only the usual burden of proof resting upon the wife as plaintiff, but also the further statutory requirement that her own testimony should be corroborated. Code, art. 35, sec. 4; Oertel v. Oertel,
The testimony shows the pair to have been jealous of each other, and the peace of their home broken by unseemly accusations, quarreling, and occasional blows. It was in January, 1927, that they parted, after a fight which left the wife with several marks or bumps on the head, and the husband with a broken shoulder bone which was caused by his wife's competent use of a poker. The chancellor, who had an opportunity to compare their relative physical prowess, sums up the situation rather favorably to the wife when he wrote in his opinion: "Although the husband was to blame for beginning the encounter, the wife, a large, muscular woman, seems to have taken good care of herself, and it is hard to tell which one was most seriously injured as a result of the encounter." While the conduct of the husband was reprehensible, so was that of the wife, and where the coarse, foul, and abusive language and slight physical violence of the husband is met and countered by the wife so as to put their conduct on a parity, without causing continued cohabitation to endanger her personal security or health, a divorce may not be granted on the ground of legal cruelty. McKane v. McKane,
In McCabe v. Brosenne,
Decree affirmed, with costs to the appellee. *588