Schwab v. Schwab

Offutt, J., delivered the opinion of the Court. On November 2nd, 1914, Leon H. Schwab and Myrtle Dorsey, both natives and residents of Baltimore^ were married 'by a Presbyterian minister in Philadelphia. He was a Jew and she a Gentile. He was forty-nine years old and she twenty-six.

Notwithstanding the disparity in their ages and their racial difference, their domestic life was quiet, peaceful, and happy for at least two years. His means did not then permit them to keep servants, and she did the household work. He on the other hand was energetic and industrious, and worked hard at his business. This tranquil and pleasant picture of domestic concord was unfortunately not permanent, and in November, 1916, an incident occurred which abruptly and rudely shattered their hopes of wedded happiness.

Mrs. Schwab at that time noticed an eruption or r:ash on her knee. It proved troublesome and stubborn and she sent for a physician. He came and found that she was suffering from syphilis in its tertiary stage. She was treated by him for that disease and completely recovered, and in the following May, the first and only child of the marriage was born, normal and free from disease.

Whether justly or not, Mrs. Schwab believed that she had been infected with the disease 'by her husband, and refused to have further marital intercourse with him. From that time discord and strife displaced their former pleasant relations, and their home 'life was embittered by constant quarrels, which culminated on February 8th, 1921, when Mrs. Schwab filed in the Circuit Court of Baltimore City the bill of complaint in this case, in which she prayed to be divorced a mensa et thoro from the defendant and to be given the custody of the child, on the ground that he had ⁴⁹ treated her so cruelly that her health both of mind and body had been broken. The defendant answered, denying the charge of cruelty, and he then filed a erossdñll charging the complainant with cruelty, and also praying for a limited divorce and the custody of the child. After testimony and a hearing, the court dismissed both bills, gave the custody of the child to the mother, and directed the defendant to pay ten dollars a week for its support.

Prom that decree the complainant has taken this appeal. The issues presented by the appeal are almost purely questions of fact, since at this day there can be little room for differences of opinion as to what is the legal definition of “cruelty” as used in the statute. Article 16, section 38, Code Pub. Gen.

Laws of Md. In hen* bill of complaint, tbe plaintiff charges that the defendant treated her harshly and cruelly, assaulted and beat her, threatened her life, and humiliated her by falsely charging her before her friends with illicit relations with other men, and that his crnel treatment was constant and continuous. The facts thus alleged, if true, are sufficient to entitle the complainant to the relief prayed. Ricketts v. Ricketts, 4 Gill, 109 ; Lynch v. Lynch, 33 Md. 328 ; Levering v. Levering, 16 Md. 219 ; Hawkins v. Hawkins, 65 Md. 108 ; Sharp v. Sharp, 105 Md. 581 ; 19 C. J., p. 53, 51; 9 R. C. L. 346. The real question in the case therefore is whether these facts, are established by the evidence.

In passing upon that question, it may be said that the value of evidence is determined not so much by its volume, or by the number of witnesses who contribute to it, as by its intrinsic, probabilities, the character of the witnesses, their interest in the parties or the controversy, and the extent to which it is corroborated or contradicted by the physical or undisputed facts of the ease, or by the testimony of witnesses, and its consistence with other evidence in the case. The charge of cruelty made by the complainant involves the assumption of some of these facts: (1) That the de ⁵⁰ fendant infected the plaintiff with, a loathsome .and dangerous venereal disease, (2) that he abused her by calling her vile, obscene, and vulgar names, (3) that he humiliated and insulted her by falsely charging her in the presence of others with having had illicit relations with him and other men before her marriage and with adultery, (4) that he struck and beat her, and (5) that he subjected her to unnecessary physical suffering and distress by the manner in which he attended and dressed certain sores and wounds which he had as a result of disease and operations. The evidence relating to these several issues of fact is, as is usual in cases of this character, conflicting and voluminous. It may be said ,at the outset that, while there is no evidence in the case sufficient to justify a finding that the appellee ever had, or infected the appellant with, syphilis, it doe® show facts sufficient to have justified the appellant’s suspicion that he had infected her and -to justify her refusal to resume marital relations with him.

There is no dispute, .and upon the record there could not be, as to these facts. There was no way known to her in which Mrs. S'ehwab could have contracted the disease, except through her relations with the defendant. Again, she asked him to have a Wood test made to ascertain if he then was infected with the disease, and he refused, and it was not until nearly a year later that such a test was made and then, not at his request, but apparently upon the initiative of the physician who was treating him for diabetes., and it is not clear that the defendant lmewl even then what test was to he made: His willingness to resume marital relations with his wife^ after he knew she had been infected with the disease, and that he did is not denied, was in itself a suspicions, circumstance, first because it indicated that he knew that the infection was not due to her misconduct, and ag’&in because it showed an absence of any fear that he might contract the disease, which would not have been natural unless he had known the source of her infection. ⁵¹ These facts, as we have said, were sufficient to justify the plaintiff’s suspicions, and also to justify her refusal to have further physical relations with the defendant, hut they were not sufficient to support a conclusion that he then had or had ever had the disease. The' medical testimony as to that fact was meagre, groping and inconclusive.

One of the means-adopted for detecting the presence of syphilis in the blood is-known to- medical science' as the Wasserman test. In the defendant’s case that test was repeated three times and each time was negative-, indicating that ho did not then have the disease, hut that result did not conclude the possibility that he did not have it then; it was hut an indication that he did not and that was all. It also- indicated that he- had not previous to that time had the disease, unless he had been treated for it before the test; if lie had been so treated then the fact that the test was- negative was- without any positive significance in determining whether he had ever been infected prior to treatment. It cannot therefore be said as a matter of fact that he had ever had the disease, or that he infected the plaintiff, and the charge of cruelty, which depends upon the assumption that the complainant was infected witli the¡ disease by the defendant, falls.

The next question is whether the defendant abused and insulted the complainant, as charged in her hill. Before considering the evidence relating to these issues', we will refer to the physical condition of the parties from, 1916 to the filing of the hill. The defendant, as has been said, suffered from diabetes. Some time in the year 1917, it affected his left foot, gangrene set in and the foot was amputated in December, 1917.

Tn 1919 lie began to have trouble with his other foot and in February, 1920, the toes of that foot were amputated. After his last operation, Schwab was very much crippled, could get about with difficulty, and constantly needed -help. Mrs. Schwab was also from, time to time in had health. She had ⁵² an attack of influenza in 1919 and in 1920 she was operated on for appendicitis.

The specific charges, made by the complainant against the defendant are that he frequently cursed her, called her vile and obscene names, and falsely accused her of immorality and adultery, and that this conduct so affected her health that she was unable to continue to live with him. It would he a profitless and needless thing to burden this opinion with any extended or detailed analysis of the evidence concerning these issues, it is enough to state its effect. And in order that the weight of the corroborative testimony and its relation to the issues may .appear, we will first state the different versions of their conduct and troubles given by the respective parties to this case. Mrs. Schwab testified that her husband had never treated her “as a wife;” that he had called her vile names, unnecessary to repeat here; that on several occasions, in the presence of others, he had said that she had gone to Atlantic City with him prior to her marriage .as his wife, which Was untrue; that he had falsely accused her of undue intimacy with another man; that in September, 1920, he struck her, bruised her, hit her with a crutch, and talked brutally to her; that in May, 1919, he struck her and pnshed her head around until he “strained” her neck so that she had to send for a physician; that he struck her a number of times; that he “swore” .at her; that on one occasion, when she had been on a visit to her mother and had returned, he had locked her out of her home, and she had gotten an “officer” to “break in,” that later, when Mr. Schwab came she was afraid to let him in, and he had stood in the hall and cursed her and told her that if she did not open the door he would kill her, .and that the next morning she had him arrested; that after she had been oper^ ated on for appendicitis and before the Wound caused by the operation had healed, as she was passing him on one occasion, he kicked and struck her on the wound, which made her very sick; that he quarreled with her continually over ⁵³ money; that he gave her1 no money and stopped her credit, although he spent much of his time at his club gambling; that he repeatedly told her to get out that he wanted to marry a “Jewish lady;” that after he had been operated on it was necessary to dress his foot, and that he would do that in the living room adjoining the dining room, and separated from it by a curtain, at meal times,, and that the odor from the wound and from the ether which he used made her violently ill.

She further testified that as a result of this conduct of the defendant she lost weight, was continually nervous and could not sleep, and that her health was “broken down completely.” I.eon H. 'Schwab, in his testimony, after denying that he had committed any of the acts with which he was charged, said that he had visited his wife about four years before he married her; that she continually “worried” him, to marry her; that, to quote him, he told her: “There is a vast difference between our ages and you know besides that I am a man that is not fixed financially to marry. Your idea of going about and at, my age now I do not feel very much like going about any more and visiting these restaurants and things of that kind, and. a very important thing, I am a man that hasi diabetes,, and yon know it. That, is costing me a good deal of money, and I said, as far as you and gentile is concerned, that does not enter my mind at all. It is, only those things and the vast difference in our ages,.

I am a man that is sickly and I am not fixed financially to give you what I would like, to give you, but above all and everything, I would not marry you until I would consult, my mother. She, is the one I want to consult. Well, I said I would let her know. I put it off as long as I possibly could until at last, she kept on asking me and asking me, worried me continually until I said, well, I am going home and ask my mother what she thinks of it.

I am very much in love with the young lady and became fascinated with her, and my mother simply told me:- Q. Wot what she, told you ? A. I told her she- was a gentile and ⁵⁴ it did not make any difference.” He further said that they lived very happily together nntil Mrs. Schwab learned that she had been infected with syphilis., and that even after that they got along very well nntil 1918, the year after he lost his left foot, that Mrs. Schwab nursed him and oared for him during his affliction nntil she went to Atlantic City with her child in 1918; -that following her return her manner changed; she became abusive, called him vile names, drank to excess, insulted him, because of bis race, and that in 1920 she left him .and again went to Atlantic Oity without letting’ him know where she was; he sent her money to1 return and she did return some time later; that she repeatedly cursed him before their child; smoked cigarettes, attended the races, frequently, would come home drunk; that against his protest she twice visited a questionable entertainment known as the “Bal des Arts,” and that on one occasion an incident occurred which he thus describes-: “Mrs. Schwab actually hollered ‘murder/ and hollered very loud. I rapped at the door and wanted to get my breakfast, and Mrs. 'Schwab, would not answer. I rapped louder and received no answer and kept on rapping, and she then said, ‘You Jew son of a bitch, if you don’t, leave this place, why, I will fix you, I will fix you, and she deliberately hollered ‘murder’ asi loud as she possibly could.

I left then and went in my living room there.” These descriptions of their married life, given by the parties themselves, differ’ in every essential but one, that their married life was for some time before their separation an intolerable affliction fox both of them. The facts given in the