Cruel and abusive treatment of a wife by her husband was not established as matter of law by a single act of his in slapping her on the back under provocation by her and without injury to her or putting her in fear of injury.
LIBEL, filed in the Probate Court for the county of Bristol on November 6, 1952.
The case was heard by Fuller, J.
Nathan J. Sokoletsky, for the libellant, submitted a brief.
No argument nor brief for the libellee.
LUMMUS, J. After being married for twenty-five years, the wife brought this libel for divorce on the ground of cruel and abusive treatment. G. L. (Ter. Ed.) c. 208, Section 1. On October 11, 1952, the husband learned that the wife owed more than $100 for furniture. When she denied owing anything, the husband "was so provoked that he lost his head and slapped her" on the back. The judge found that the slap was not severe, left no mark, and did not put the wife in fear. He denied the wife a divorce, and she appealed.
The only question is whether the judge was required as matter of law to consider such a slap as proof of cruel and abusive treatment. In Lyster v. Lyster, 111 Mass. 327 , 328-329, Gray J., said that "Any acts or conduct which injured or endangered life, limb or health, or created reasonable apprehension of such injury or danger from a continuance of the cohabitation, would constitute cruel and abusive treatment within the meaning of the statute." That statement was followed in Bonney v. Bonney, 175 Mass. 7 , 8, and Krasnow v. Krasnow, 280 Mass. 252 , 255.
Only a single act of violence was shown in this case. That did not require a finding of cruel and abusive treatment. Sylvester v. Sylvester, 330 Mass. 397 . Hamilton v. Hamilton, 325 Mass. 278 . Vergnani v. Vergnani, 321 Mass. 703 . The provocation furnished by the wife tends to mitigate the effect of the slap. Hamilton v. Hamilton, 325 Mass. 278 , 280. In that case we said, "We do not believe that this single act of violence to the person of the libellant . . . constitutes cruel and abusive treatment as matter of law, where there was no finding of harm or injury, or fear of harm or injury, to the libellant, and where particularly the act complained of was apparently provoked by the conduct of the libellant."