Action for divorce by Wilmer J. Cannon against Ann G. Cannon on the ground of extreme cruelty. The Superior Court, New Castle County, Herrmann, J., held that the evidence was insufficient to establish that acts of wife so endangered health or safety of husband as to constitute extreme cruelty.
Decree denying divorce.
[46 Del. 238] David B. Coxe, Jr. of Wilmington, for plaintiff.
Clement C. Wood (of Young and Wood) of Wilmington, for defendant.
This action for divorce is based upon Paragraph 3499(d), Revised Code of Delaware 1935, which establishes as a ground for divorce:
‘ Extreme cruelty, on the part of either husband or wife, such as to endanger the life or health of the other party or to render cohabitation unsafe.’
The parties were married on April 22, 1944. The Plaintiff asserts and has sought to prove that, within the past year, the defendant committed the following acts which, the plaintiff contends, constitute extreme cruelty within the meaning of our Statute:
1. That on October 3, 1950, the defendant scratched his shoulder with her fingernails.
2. That on November 22, 1950, the defendant injured his arm with a metal skirt hanger.
3. That on December 17, 1950, the defendant threw a small table and an ash tray at him, neither of which struck him.
4. That on January 23, 1951, the defendant burned his hand with a lighted cigarette, causing a second degree burn.
5. That on February 7, 1951, the defendant struck him in the face with her hand, causing him to sustain a black eye.
6. That on several occasions the defendant threw a jewel box and small ash trays at him, none of which struck him.
7. That since March 1950 the defendant has refused to have marital relations with him.
8. That the defendant has persisted in accusing the plaintiff of acts of infidelity, without reason or cause.
9. That the defendant constantly nagged him, subjected him to abusive language, and attempted to provoke quarrels.
[46 Del. 240] 10. That the defendant frequently threatened to besmirch his reputation and thus cause him to lose his employment.
Medical testimony was adduced on behalf of the plaintiff to the effect that the plaintiff had been treated for a bruised eye and a burn on the hand. The doctor also testified that the plaintiff had recently lost some weight, that he had become depressed and irritable, and that he had developed a nervous condition. The doctor was unable, however, to identify the cause or causes for the injuries or for the changes in the physical and mental condition of the plaintiff.
The defendant denies all of the plaintiff's accusations except that she admits scratching the plaintiff's shoulder with her fingernails in self-defense. There is direct conflict in the evidence as to all of the other charges asserted by the plaintiff, and neither party has produced corroborative evidence of any probative value.
As in any civil action in this Court, the plaintiff is obliged to establish, by a preponderance of the evidence, the essential facts required to entitle him to the remedy he seeks. In view of the lack of corroborative evidence and the direct conflict in the testimony of the parties, I am of the opinion that the plaintiff has failed to sustain his burden of proof both as to the occurrence of the acts complained of and the deleterious effect thereof upon his health and safety. For that reason alone the plaintiff's petition must be dismissed.
The result would not be different, however, even though the plaintiff had been able to prove the acts complained of by a preponderance of the evidence. Assuming that the alleged acts of commission and omission by the defendant actually occurred as asserted by the plaintiff, would they constitute ‘ extreme ...