Hoshall v. Hoshall

Bartol, C. J., delivered the opinion of the Court. A careful examination of the evidence in this case has brought us to the same conclusion reached by the Judge of the Circuit Court, and so well expressed in his opinion contained in the record. The only ground upon which the claim of the appellant to a divorce seems to rest with any degree of plausibility, is the alleged “ cruelty of treatment ” by her husband; but in our judgment the testimony fails to make out a case of cruelty of treatment, such as is contemplated by the Act of Assembly (1872, ch. 272,) as this has been uniformly understood and defined by the Courts. ⁷⁵ A single act of personal violence by her husband is proved, and it appears that this was provoked by her own unjustifiable conduct. It occurred in October 1876, and soon afterwards she voluntarily left her home, and went to live with one of her married daughters.

This single act of violence on his part, though it cannot be justified in morals or in law, did not constitute “ cruelty of treatment” within the meaning of the law, as a cause for divorce a mema et thoro. There is no proof in the record of any systematic or continued cruelty of treatment by the appellee, or any danger, to her life, limb or health, such as renders impossible the proper discharge of the duties of married life. If, said the Court in Dysart vs. Dysart, 1 Rob., 140 , “a wife can ensure her own safety by lawful obedience, and by a proper self-command, she has no right to come here: for this Court affords its aid only where the necessity for its interference is absolutely proved.” It appears that these parties were married in 1847, at that time the appellant was a widow with four children. After the marriage they continued to live together for nearly thirty years, four children were born to them, one of whom died, and the other three all grew up, were married and went to live in their own homes.

So far as the evidence discloses, all