Hart, J.
(after stating the facts). "What constitutes a cause of divorce is a matter of law. Whether such conduct exists is a matter of fact to be proved by competent evidence. One of the grounds for divorce under our statute is where either party shall be guilty of such cruel and barbarous treatment as to endanger the life of the other. Sec. 3500 of Crawford & Moses’ Digest.
While a single act of physical violence does not always justify a divorce under the statute, still it may be of such violence and danger to the life of the complaining party as to constitute a ground of divorce. Much depends upon the character of the violence and upon the presence or absence of provocation. A serious blow given intentionally and without any provocation will generally give rise to the inference that it is likely to be repeated and thus create a reasonable apprehension of danger for the future. The evidence must show that the life of the complaining party was endangered.
The question was discussed at length in the case of De Coito v. De Coito, 21 Hawaii, 339. It was there held that to constitute extreme cruelty there must be such violence or such a course of conduct as tends to endanger life, limb, or health, or create .a reasonable apprehension of such result, thus rendering continued cohabitation unsafe.
In Ford v. Ford, 104 Mass. 198, it was held thatwhere the evidence relied on is that of blows given on a single occasion, the violence must be of such a character as to endanger life, limb, or health, or as to create a reasonable apprehension of such danger.
In Beyer v. Beyer, 50 Wis. 254, it was held that a single assault and battery constitutes cruelty when committed under circumstances which indicate that the defendant has so little control over his passions that he will be likely to repeat personal violence on any provocation.
In May v. May, 62 Pa. 206, the court held that a single act of cruelty may be so severe and attended with such corresponding circumstances of atrocities as might, under a fair and liberal construction of the act, justify a divorce. But the court said that no single act of cruelty, however severe, that comes short of endangering life, is sufficient to justify a divorce.
As we have said, our statute names as one of the causes for divorce that either party shall be guilty of such cruel and barbarous treatment as to endanger the life of the other.
While the chancellor did not grant an absolute divorce, still he found the facts for the plaintiff and granted him a divorce from bed and board on the ground that he had the power to grant either kind of divorce under the statute on the same testimony.
It cannot be said that the finding of facts made by the chancellor is against the weight of the evidence. The husband testified that his wife, without warning, attempted to cut his throat and did cut a gash in it five inches long. He ran away from her, and she followed him to a neighbor’s house, where she severely cut his hand while he was trying to keep away from her by holding a door between them. Even after the neighbor caught hold of her, she made repeated attempts to again cut her husband with the razor. She cut him in the back as he ran away from her. His injuries were so severe that he was confined for ten days in a hospital. He made no attempt whatever to strike his wife or in any way to injure her. He merely tried to run away from her.
The husband’s testimony is corroborated by that of the neighbor to whose house he ran to escape from his wife. Indeed, the wife admits the cutting, and only seeks to excuse it on the ground that her- reason was temporarily dethroned. She introduced witnesses who testified to that fact. However, they all described her appearance, and it is fairly inferable from the surrounding circumstances that she attacked her husband in a sudden fit of anger. In any event, her attack was so severe that she endangered his life, and it would seem that under the circumstances he is justified in not living' with her again. There was but little, if any, provocation for the assault.
. It is true that the wife testified in á general way about indignities suffered by her at' the hands of- her husband, but he specifically denied any ill treatment of her, and said that whatever marital' troubles they’had’ arose from the fact that she would not live away'from her mother in a home which he offered to prepare for her. It was her duty to live with her husband, and the circumstances attending the assault do not show any provocation for it.
Hence we cannot say that the finding of fact made by the chancellor in favor of the plaintiff is' against- the-’ preponderance-of the-evidence.- ' • \ ".....■
It appears from the record, however, that the chancellor refused to grant an absolute divorce to the plaintiff, not because he was not entitled to such a divorce under the facts, but because the chancellor believed that under the statute he had a right to grant an absolute or limited divorce upon the same testimony as he might deem proper.
In this respect we think the learned chancellor erred. It is true that § 3500 of Crawford & Moses’ Digest provides that the .chancery court shall have the power to dissolve and set aside a marriage contract, not only from bed and 'board, but from the bonds of matrimony, for the causes specifically enumerated in the statute. This, however, does not mean a discretion to be exercised at the will of the chancellor; but it is a judicial discretion to be exercised according to equitable principles and the peculiar circumstances of each case.
The subject was thoroughly discussed by Judge Field, while a member of the Supreme Court of California, in the case of Conant v. Conant, 70 Am. Dec. 717. The statute construed in that case provides that the several district courts of the State shall have exclusive jurisdiction to grant a divorce from bed and board and from the bonds of matrimony. Wood’s Digest of the Laws of California, Art. 2635.
It will be noted that the statute, in so far as it relates to the discretion of the court in granting an absolute or limited divorce, is substantially the same as our statute. In- that part of the decision bearing on this question, the learned justice said:
“The statute says divorces may be granted from bed and board, or from the bonds of matrimony, but it was never intended that either should be indifferently granted, according as the prayer of the applicant asked for one or the other modes of relief. It was intended that a certain discretion should be exerteised by the courts, according to the special circumstances of each suit, acting upon the settled principles of the common law as applicable to this class of cases. And the true rule which should govern the court in the exercise of its discretion in this respect is this, that, to entitle to a decree for an absolute divorce from the bonds of matrimony, the applicant must be an innocent party — one who has faithfully discharged the obligations of the marriage relation, and seeks relief because really aggrieved or injured by the misconduct of the other; and, on the other hand, where there are circumstances showing a disregard of those obligations, though not carried to such a degree as to constitute itself a ground for divorce, the decree should be only for a divorce from bed and board.
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Hart, J.
(after stating the facts). "What constitutes a cause of divorce is a matter of law. Whether such conduct exists is a matter of fact to be proved by competent evidence. One of the grounds for divorce under our statute is where either party shall be guilty of such cruel and barbarous treatment as to endanger the life of the other. Sec. 3500 of Crawford & Moses’ Digest.
While a single act of physical violence does not always justify a divorce under the statute, still it may be of such violence and danger to the life of the complaining party as to constitute a ground of divorce. Much depends upon the character of the violence and upon the presence or absence of provocation. A serious blow given intentionally and without any provocation will generally give rise to the inference that it is likely to be repeated and thus create a reasonable apprehension of danger for the future. The evidence must show that the life of the complaining party was endangered.
The question was discussed at length in the case of De Coito v. De Coito, 21 Hawaii, 339. It was there held that to constitute extreme cruelty there must be such violence or such a course of conduct as tends to endanger life, limb, or health, or create .a reasonable apprehension of such result, thus rendering continued cohabitation unsafe.
In Ford v. Ford, 104 Mass. 198, it was held thatwhere the evidence relied on is that of blows given on a single occasion, the violence must be of such a character as to endanger life, limb, or health, or as to create a reasonable apprehension of such danger.
In Beyer v. Beyer, 50 Wis. 254, it was held that a single assault and battery constitutes cruelty when committed under circumstances which indicate that the defendant has so little control over his passions that he will be likely to repeat personal violence on any provocation.
In May v. May, 62 Pa. 206, the court held that a single act of cruelty may be so severe and attended with such corresponding circumstances of atrocities as might, under a fair and liberal construction of the act, justify a divorce. But the court said that no single act of cruelty, however severe, that comes short of endangering life, is sufficient to justify a divorce.
As we have said, our statute names as one of the causes for divorce that either party shall be guilty of such cruel and barbarous treatment as to endanger the life of the other.
While the chancellor did not grant an absolute divorce, still he found the facts for the plaintiff and granted him a divorce from bed and board on the ground that he had the power to grant either kind of divorce under the statute on the same testimony.
It cannot be said that the finding of facts made by the chancellor is against the weight of the evidence. The husband testified that his wife, without warning, attempted to cut his throat and did cut a gash in it five inches long. He ran away from her, and she followed him to a neighbor’s house, where she severely cut his hand while he was trying to keep away from her by holding a door between them. Even after the neighbor caught hold of her, she made repeated attempts to again cut her husband with the razor. She cut him in the back as he ran away from her. His injuries were so severe that he was confined for ten days in a hospital. He made no attempt whatever to strike his wife or in any way to injure her. He merely tried to run away from her.
The husband’s testimony is corroborated by that of the neighbor to whose house he ran to escape from his wife. Indeed, the wife admits the cutting, and only seeks to excuse it on the ground that her- reason was temporarily dethroned. She introduced witnesses who testified to that fact. However, they all described her appearance, and it is fairly inferable from the surrounding circumstances that she attacked her husband in a sudden fit of anger. In any event, her attack was so severe that she endangered his life, and it would seem that under the circumstances he is justified in not living' with her again. There was but little, if any, provocation for the assault.
. It is true that the wife testified in á general way about indignities suffered by her at' the hands of- her husband, but he specifically denied any ill treatment of her, and said that whatever marital' troubles they’had’ arose from the fact that she would not live away'from her mother in a home which he offered to prepare for her. It was her duty to live with her husband, and the circumstances attending the assault do not show any provocation for it.
Hence we cannot say that the finding of fact made by the chancellor in favor of the plaintiff is' against- the-’ preponderance-of the-evidence.- ' • \ ".....■
It appears from the record, however, that the chancellor refused to grant an absolute divorce to the plaintiff, not because he was not entitled to such a divorce under the facts, but because the chancellor believed that under the statute he had a right to grant an absolute or limited divorce upon the same testimony as he might deem proper.
In this respect we think the learned chancellor erred. It is true that § 3500 of Crawford & Moses’ Digest provides that the .chancery court shall have the power to dissolve and set aside a marriage contract, not only from bed and 'board, but from the bonds of matrimony, for the causes specifically enumerated in the statute. This, however, does not mean a discretion to be exercised at the will of the chancellor; but it is a judicial discretion to be exercised according to equitable principles and the peculiar circumstances of each case.
The subject was thoroughly discussed by Judge Field, while a member of the Supreme Court of California, in the case of Conant v. Conant, 70 Am. Dec. 717. The statute construed in that case provides that the several district courts of the State shall have exclusive jurisdiction to grant a divorce from bed and board and from the bonds of matrimony. Wood’s Digest of the Laws of California, Art. 2635.
It will be noted that the statute, in so far as it relates to the discretion of the court in granting an absolute or limited divorce, is substantially the same as our statute. In- that part of the decision bearing on this question, the learned justice said:
“The statute says divorces may be granted from bed and board, or from the bonds of matrimony, but it was never intended that either should be indifferently granted, according as the prayer of the applicant asked for one or the other modes of relief. It was intended that a certain discretion should be exerteised by the courts, according to the special circumstances of each suit, acting upon the settled principles of the common law as applicable to this class of cases. And the true rule which should govern the court in the exercise of its discretion in this respect is this, that, to entitle to a decree for an absolute divorce from the bonds of matrimony, the applicant must be an innocent party — one who has faithfully discharged the obligations of the marriage relation, and seeks relief because really aggrieved or injured by the misconduct of the other; and, on the other hand, where there are circumstances showing a disregard of those obligations, though not carried to such a degree as to constitute itself a ground for divorce, the decree should be only for a divorce from bed and board. To obtain a release a vinculo matrimonii, the applicant must be without reproach, and, however guilty the defendant, if the applicant is chargeable either with similar guilt or an offense to which the law attaches similar consequences, the relief must be denied; and if the applicant, though not thus guilty, is still not blameless, the relief must be limited to a divorce a mensa et thoro.”
But it is claimed that this decision is contrary to the rule laid down in Crews v. Crews, 68 Ark. 158. In that case the chancellor granted the defendant on her cross-complaint a divorce from bed and board, and in discussing the question Chief Justice Btjnn said:
“The decree from bed and board and the divorce from the bonds of matrimony both rest upon the same ground, and.the same evidence will sustain either, with this qualification: Upon the evidence the chancellor has a sound discretion to grant the one kind of divorce or the other as he may deem best under the circumstances. The text writers generally, and many jurists, declaim against divorces from bed and board as useless, if not absolutely wrong in principle, but we cannot enter upon a discussion like that. The law authorizes divorces of that kind, and the implication, at least, is that circumstances must determine when they should be granted. The chancellor has exercised his discretion, and we cannot say that his discretion has been abused. His decree is therefore affirmed.”
A,majority of the court is of the opinion that the rule laid down in that case is in accordance with and not contrary to the principles announced by Justice Field. Every opinion must be construed with reference to the facts under discussion.
In Crews v. Crews, supra, the chancellor found that both parties were to a degree in fault, and that neither was entitled to an absolute divorce, but that a decree of divorce from bed and board should be rendered. It was contended by counsel that this finding was tantamount to a finding that both parties were equally at fault, and that therefore neither was entitled to a divorce. This court said that it did not think that the language of the chancellor had that meaning, but rather that, while neither was blameless, there was a difference in their guiltiness in degree.
The language quoted above shows that this constituted the basis of the affirmance of the decree of the chancery court. It will be noted that the court said that the decree from bed and board and an absolute divorce rests upon the same ground, and that the same evidence will sustain either, with a qualification.
The qualification was that the chancellor has a sound discretion to grant the one 'kind of divorce or the other, as he may deem best under the circumstances. The circumstances under which the chancellor exercised his discretion in that case were, as we have already seen, that both parties were to a degree in fault, and on that account neither was entitled to an absolute divorce. The defendant was granted divorce from bed and board because the chancellor deemed that she was the less guilty of the two parties. It will be seen from the language quoted that this court will reverse the chancellor where he abuses his discretion in the matter. If the chancellor had the right to grant an absolute or limited divorce indifferently, it is plain that he eonld never abuse his discretion.
On the other hand, if his discretion is to be exercised according to the principles expressed in Conant v. Conant, supra, and in accordance with the acts of the chancellor in Crews v. Crews, supra, it is manifestly an abuse of discretion for the chancellor to grant a divorce from bed and board where the complaining party is without fault and has established his or her grounds for divorce.
Therefore, the chancellor, having found the facts in favor of the plaintiff, abused his discretion in refusing to grant him an absolute divorce, and in granting him a divorce from bed and board.
The property rights of the parties arising from the marital relations were settled by agreement, and that phase of the case is not before us.
Complaint is also made by the plaintiff that the court erred in not granting him the custody of their two children. The court granted the custody of the children to the mother with the right of visitation to the father. One of the children was a boy, age six, and the other a girl nine years old. While the plaintiff asked for the custody of the children, he does not assign any reason why he should have them, and the court can perceive none. -It does not follow that, because the wife tried to kill him in a fit of anger, she did not have any parental affection for the children. Oh the contrary, the record discloses that she loved them and was properly caring for them. The court looks mainly to the comfort and happiness of the children and gives them to the keeping of that parent who can best look after them.
On account of their tender years, it cannot be said that the chancellor erred in giving them to the custody of the mother, with the right of visitation to the father at all proper and reasonable times. Therefore, the decree in this respect will be affirmed.
It follows from the views expressed above that the chancellor erred in not granting an absolute divorce to the,plaintiff, and for that error the decree will be reversed and the cáuse remanded, with directions to grant him an absolute divorce.