
    THOMAS F. PATTISON vs. CLARA V. PATTISON.
    Divorce: vile names and blows by husband; 'wife ordered to leave house; adultery; proof..
    
    Where a man calls his wife vile names, strikes her, and orders her to leave the house, it is an expulsion as much as if he used physical force to eject her; it constitutes such an abandonment on his part as to justify rendering her a decree of divorce a mensa et thoro. /
    
    On a bill for divorce on account of adultery, there must be proof of circumstances such as would convince the guarded discretion of a reasonable and just man.
    The burden of proof is upon a complainant, and the evidence must establish affirmatively that actual adultery was committed, since nothing less than the carnal act itself can lay the foundation for such a divorce.
    
      Decided February 27th, 1918.
    
    Appeal from the Circuit Court for Howard County. (Forsythe, Jr., J.)
    The cause was argued before Boyd, C. J., Briscoe, Thomas, Pattisow, Ureter and Stockbridge, JJ.
    
      8. 8. Field and Louis T. Clark, for the appellant.
    
      James Clark and Harry B. Wolf, for the appellee.
   Thomas, J.,

delivered the opinion, of the Court.

The appellant filed a hill of complaint in the Circuit Court for Howard County against the appellee for a divorce on the ground of adultery. The appellee answered the bill denying the offense charged, and on the same day filed a cross-hill against the appellant for a divorce a mensa, el fhoro on the ground of abandonment and desertion, for the custody of their infant children and for alimony, and this appeal is from a decree dismissing the appellant’s bill and granting; the relief prayed in the bill of the appellee.

The evidence in the case covers over three hundred pages of the record, and after a careful consideration of all of the testimony, we find no reason for disturbing the decree of the learned Judge before whom the case was tried, who observed the manner and conduct of the witnesses on the witness stand and had the opportunity, which that circumstance always affords, of passing upon the credibility of their testimony. We will not encumber this opinion with a detailed discussion of the evidence, hut will confine ourselves to a reference to some of the important features of it and a statement of our conclusions.

At the time of the offense charged in the hill of complaint the plaintiff was 47 years of age and his wife was 40. They had been married nineteen years and had four children living. Their oldest child, Louis Elwood Pattison, was eighteen years of age and was married and lived in Baltimore City, and the other children—Hilda Virginia Pattison, 10 years of age; Artemus Zepp Pattison, 4 years of age, and Mary Clara Pattison, a baby, 7 months old, lived with their parents, who have resided practically ever since tlieir marriage on the plaintiff’s farm in Howard County. The evidence conclusively shows that at or about the time of their birth, and frequently thereafter, the plaintiff asserted that he was not the father of Artemus and Mary Clara. These charges were not only made to his wife, the appellee, but were made to others in her presence and out of her presence, and involved .gentlemen, of prominence, other than the party accused in this case, who held the confidence and respect of the people in the neighborhood in which they and the plaintiff resided. The record is entirely devoid of any evidence to support those and other accusations of misconduct made by the plaintiff anterior to the one upon which he based his present suit, and on the record before us they can only be attributed to an unjustifiable attitude cf suspicion towards his wife.

The particular offense which is made the foundation of the present suit is alleged to have been committed on the 31st of January, 1917, with a physician, who was á married man 62 years of age, and was enjoying an extensive practice in the neighborhood in which he and the plaintiff reside; who was the friend and medical adviser of the appellee’s mother during her life and of her family; who attended the appellee at the time of the birth of each of her children, and who has been the family physician of the plaintiff ever since his marriage. Mary Clara, the baby, had been a frail and delicate child from her birth and required a great deal of medical •care and attention, which obliged the defendant to frequently call up the family physician by telephone to- come to see the baby or to send her medicine for it. The telephone in the plaintiff’s house was on what is called a party line, with which there were a number of connections, and very frequently the defendant could not get a response to her call. When that was the case she would write a note to the Doctor asking him to send medicine or to come to see the baby, and would send the note to his house by a colored man in the employ of the plaintiff. The frequent visits of the Doctor, telephone calls and notes to him, and certain information which he says he got from the colored man and a colored girl about 16 years old who cooked for his family, aroused the suspicions of the plaintiff, and he determined to set a trap for his wife and the Doctor, and apparently employed the colored man and the colored girl to aid him in his plan. Accordingly, on Tuesday, the 30th of January, 1917, he told liis wife that he was going to Baltimore early the next morning. Pie got up about 5 o’clock the next morning, but instead of going to Baltimore he went into the cellar of his house and remained there until the Doctor arrived, in response to a note from the defendant asking him to come to see the baby. Pie testifies that after his wife came downstairs that morning she wrote a note to the Doctor and gave it to the colored man to deliver; that the colored man brought the note to him in the cellar and that he took a copy of it, and then handed it back to the man, who took it to the Doctor; that the Doctor arrived about 11 o’clock; that the Doctor and his wife went into the sitting room on the first floor, and that he then came up from the cellar and peeped through the door and saw them in the act of adultery on a davenporb When asked if he, plaintiff, had any weapon in his hand at the time, he said: “Yes, sir; I had the butt end of a whip and it had iron in it.” IPe further testified that when he saw them he did not say anything to the Doctor or his wife, but went into' the parlor and walked up and down the parlor until the Doctor went away; that he then went to Ellicott City to consult his lawyer; that he saw his wife the next morning when she came downstairs.; that she told him that the baby had had a spasm and had gotten black in the face; that she had not been able to get the Doctor over the telephone and had sent the colored man after him; that he asked her how many times the Doctor had been there, and she said only once; that he did not say anything to his wife that day, but on Eriday morning when his wife came downstairs and started to. put her arms around him, he told her not to. put her hands, on him, and then told her what he had seen on the Wednesday before; that she denied it, and when he replied that it was a. damn lie, she said: “You are another one,” and that he “slapped her side the head.” The plaintiff is the only eyewitness to the alleged act of adultery, and his testimony was. flatly and positively contradicted by the defendant and the Doctor, who fully explained in their testimony every, visit to the plaintiff’s house. The testimony of the colored man and colored girl offered in corroboration of the testimony of the plaintiff is, to say the least, far from satisfactory. Unless, the facts to which their testimony relates are satisfactorily explained by the fact that the Doctor was the family physician of the plaintiff and defendant, we would have to assume that the defendant not only confided in them but made them the means of accomplishing her adulterous course. They admitted, on cross-examination, they had never seen anything improper in the relations of the defendant and the Doctor, and the fact that they are now in the employ of the plaintiff may account for their inability to remember many of the things and circumstances in regard to which they were interrogated on cross-examination. The testimony of Louis Elwood Pattison and his wife relates to. what occurred on election day in November, 1916. They testified that on that day they were visiting the plaintiff’s home, and that when they came back from an entertainment in the evening they saw the Doctor’s buggy near the house, and when they went into the house they heard voices upstairs; that in a few minutes his mother came down the back steps, and that “her face was red as a beet and her lips were trembling,” and Elwood testified that he never said anything and told his wife not to say anything. The incriminating feature of this evidence is also* positively denied by the defendant and the Doctor, and his visit on that occasion explained. On cross-examination, however, Elwood admitted that when on a later visit to his parents’ home he needed the care and attention of a physician, and went to see the Doctor and was attended by him, and it is difficult to believe that he. could have treated with so much indifference such an offense upon the part of his mother. It is said in Bishop on his work on Marriage and Divorce, Vol. 2, Section 762: “The party charging the matrimonial offense must present more than equally balanced testimony. He must affirmatively and satisfactorily prove it; he must overcome the presumption of innocence, and otherwise make out his case clearly, in proportion. to the gravity of the accusation and its heavy consequences.” In Kremelberg v. Kremelberg, 52 Md. 553, the Court said: “The only general rule to he laid down on the subject, says Toed Stowell, ‘is that the circumstances must be such as would lead the guarded discretion of a reasonable and just man to the conclusion; for it is not to lead, a harsh and intemperate judgment, moving- upon appearances that are equally capable of two interpretations; neither is- it to- be a matter- of artificial reasoning, judging upon such things differently from what would strike the careful and cautious consideration of a discreet man. The rational and legal inferences fro-m such facts must be the same.’ ” And in the case of Thiess v. Thiess, 124 Md. 292, this Court said: “The burden of proof is upon the complainant, and the evidence must establish affirmatively that actual adultery was committed, since nothing less than the carnal act itself can lay the foundation o-f a divorce for1 adultery. * * * It has been repeatedly decided in this State that in cases of this kind courts will not grant a divorce a vinculo matrimonii except upon clear, unequivocal and convincing proof, and upon a state of facts that satisfactorily established the guilt of the defendant.” In the case of Hawkins v. Hawkins, 65 Md. 104, Chief Judge Alvey, speaking for the Court, said: “The testimony is voluminous, and much of it is conflicting in its details. It comes largely from the domestic servants who were employed about the house of the parties during the time of their cohabitation. Some of these witnesses manifest a decided bias for the party producing them, while others testify with more apparent fairness, and without showing any decided feeling for the one side or the other. And while the testimony of such witnesses can not be repudiated altogether, it must be considered with caution, and taken always with due allowance, according to the bias displayed for the party in whose behalf the witness testifies.” Judging the evidence in this case by the standard fixed by the authorities we have referred to, and exercising the care and caution which'the gravity of the charge requires, we have not been able to find in the record sufficient proof to warrant a conclusion that the defendant was guilty of the offense alleged.

This brings us to a consideration of the case under the cross-bill. As we have said, the plaintiff repeatedly accused his wife of infidelity and denied the paternity of at least two of her children. These accusations were made to her and to others, and on one occasion when she was in a delicate condition and most susceptible to their humiliating and distressing effect. This abuse extended through a period of a number of years, without, so far as the record discloses, any justification for such conduct, and finally culminated in the charge of adultery contained in his bill of complaint, which he has failed to sustain. When he accused her of having had intercourse with their family physicain and she denied it, he called her insulting names and struck her, according h> her testimony, with such force that it made her sick for two days, and told her that she would have to leave his house, “and the quicker the better.” She remained there and in her room for two days until she could wash some clothes the colored girl had refused to wash for her baby, and then went to her sister’s and from there to' her father’s home.

Section 38 of Article 16 of the Code provides that a divorce a mensa et thorn may be granted for abandonment and desertion. Where a wife is forced to leave her husband under such circumstances, with the evident purpose to put an end to- the marriage relation, he must be held to have abandoned and deserted her. This case is so strikingly like the ease of Harding v. Harding, 22 Md. 337, it is not necessary to cite other authorities. After holding that the evidence was not sufficient to justify a divorce on the ground of cruelty of treatment, the Court in that case, speaking through Judge Bartol, said: “But the evidence establishes the fact that the appellant was compelled to leave the house of the appellee and seek a home with her parents. It is true that she was not ejected from his dwelling by personal violence; but after the birth of her child, and while she was unable to leave her bed, he told her more than once that he would not- permit her to remain; That she must leave his home as soon as her confinement was over’; and in his answer he admits that he would have removed her from his house if she had not gone. The testimony further shows that after she had left he stated repeatedly that she should not return, and that he would not support her and her child. This conduct on the part of the appellee was accompanied with allegations of the gravest and most serious character, impeaching the virtue and chastity of the appellant, and charging that her child was not his, but, the offspring of another man.

“Whatever may have been the causes which led the appellee to adopt this unhappy suspicion, we are compelled to say that there is no evidence in the cause upon which it can rest. Every attempt made to impeach the character of the appellant has signally failed, and testimony clearly shows that before her marriage her character and chastity was free from suspicion or reproach, and her conduct seems to have been blameless, except only in the fact stated by the appellee himself to two of the witnesses, that she had yielded to his embrace two weeks before their marriage.

“This fact may have had some influence upon the mind of the appellee, in giving rise to the suspicion upon which he afterwards acted; hut in the absence of any proof impeaching her chastity toward other men, it can afford no justification to the appellee for his subsequent conduct. * * *

“The conclusion we have come to from an examination of the testimony is, that the charge made by the appellee in his answer, of misconduct by the wife before marriage, is not supported by the proof. The character of this charge and the evident sincerity of the appellee in making it, sufficiently demonstrate that the unhappy differences between them was, as he asserted to the witness Stabler, wholly irreconcilable. Under these circumstances, he told her to leave his house; her expulsion was as much compulsory as if he had employed force to eject her. And being, according to the proof in the record, without sufficient cause, we must consider it as an unjustifiable abandonment and desertion on his part. So it was decided in Levering v. Levering, 16 Md. 213.”

Forcing her to leave his home under the circumstances stated, and then placing upon record a formal charge of adultery against her, shows that the abandonment of the appellant in this case was “the deliberate act” of the husband, “done with intent that the marriage relation should no longer exist” (Hubbard v. Hubbard, 127 Md. 617), and entitles the appellee to the relief sought in her cross-bill.

The decree of the Oourt below, from which this appeal was taken, fixed the amount of the allowance to the appellee at $900.00 per year. Subsequently, on the petition of the appellant, plaintiff below, the Oourt, after a further hearing, reduced the annual allowance to the appellee to $780.00, and from that order no appeal has been taken. The record, therefore, presents no objection to the amount of alimony allowed by the lower Oourt, and for the reasons stated the decree will be affirmed.

Decree affirmed, with costs.  