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March 20, 1950



Milton S. Leidner, Leidner & Leidner, Philadelphia, for appellant.

Charles W. Sweeney, Philadelphia, for appellee.

Before Rhodes, P. J., and Hirt, Dithrich, Ross, Arnold and Fine, JJ.

Author: Rhodes

[ 166 Pa. Super. Page 435]

RHODES, President Judge.

This is an action in divorce in which the wife filed her libel on April 22, 1946,*fn1 charging her husband with cruel and barbarous treatment and indignities to her person. Respondent did not file any answer but a bill of particulars was filed by libellant, and thereafter a master was appointed on April 14, 1947. At the hearing before the master libellant appeared with her counsel and witnesses. The master in his report recommended that a divorce be granted on the ground of indignities to the

[ 166 Pa. Super. Page 436]

    person. The respondent filed exceptions to the master's report. The court referred the cause back to the master for the purpose of taking further testimony, and granted leave to libellant to file and serve an amended libel setting up the additional ground of wilful and malicious desertion. Both parties, with their counsel and witnesses, then appeared before the master and additional testimony was taken. The master in his supplemental report again recommended that a divorce on the ground of indignities to the person be granted to libellant, but concluded that the charge of desertion had not been sustained. Exceptions to the supplemental report of the master were filed by both parties. The court below sustained respondent's exceptions and dismissed libellant's exceptions and entered a decree dismissing the libel. Libellant has appealed.

The parties were married on September 20, 1941, and thereafter resided in the city of Philadelphia where they had always lived prior to their marriage, and where they have continued to reside since the separation on February 28, 1944. A daughter who lives with libellant was born of the marriage on August 1, 1942. Respondent contributes to her support. The parties lived together approximately two and one-half years at 5535 Upland Street in the city of Philadelphia. Subsequent to the separation the libellant went to live with her parents and respondent went to live with his parents. Respondent was employed as a welder by the Philadelphia Transportation Company. At the time the libel was filed libellant was 27 years of age, and respondent 30 years of age.

As the question of credibility is involved, the master's judgment upon that vital factor is entitled to the fullest consideration, although we are not concluded by his findings. Smith v. Smith, 157 Pa. Super. 582,

[ 166 Pa. Super. Page 43743]

A.2d 371. Having seen and heard the parties and their witnesses, he possesses an advantage not granted to this Court or to the court below. The facts must be determined largely from the testimony of the parties themselves. There was some corroboration of the testimony of the libellant as to the conduct of respondent. Her testimony, as incorporated in the record, however, was not free from some inconsistencies which we have not overlooked.

We are not able to agree with the conclusion of the court below in dismissing the libel. Having examined the evidence de novo for the purpose of determining whether the allegations in the libel have been sustained, we conclude that libellant is entitled to a divorce on the ground of indignities. Consequently, it is not necessary for us to determine whether libellant has made out a case on the other grounds charged in the libel and the amended libel. See Heimovitz v. Heimovitz, 161 Pa. Super. 522, 523, 55 A.2d 575.

Libellant, at the time of the marriage, weighed 118 pounds, and after two and one-half years of married life with respondent she weighed 100 pounds. Respondent, with outdoor employment, was a strong and healthy man. Libellant, during a portion of the time they lived together as well as for a period after the separation, as a result of respondent's actions, was physically unfit to work and was under a doctor's care. During the first months of their married life, almost daily, as he himself stated, he 'blew his top' upon coming home from work in the afternoon and finding that the furnace fire was out. Libellant had difficulty in this respect due to the large size of coal used. Because of this situation he accused her of being lazy, and said he was 'God Damn good sick and tired of it.' He admitted before the master that he was wrong in this treatment of libellant, and that her inability to maintain a fire in the furnace was attributable

[ 166 Pa. Super. Page 438]

    to the coal during the first year; she took care of the furnace to his satisfaction the second year. Libellant became ill as a result of her pregnancy in November, 1941, and in January, 1942, she was required by her doctor to go to a hospital. During this period respondent was intolerant of her condition and resentful that she wanted assistance. While libellant was in that condition respondent stayed out nights, drank, and called libellant vile names. He admitted that he drank and at times became intoxicated. When questioned by libellant relative to his late hours he would swear at her and tell her his conduct in that respect was none of her 'damn business.' This course of conduct continued until their daughter was born on August 1, 1942. Prior to Christmas 1942, respondent had been drinking heavily and stayed out until three or four o'clock in the morning. After an all-night absence, when libellant later in the day asked him if he wanted his supper, he struck her in the stomach and told her 'You can get the hell out and stay out.' As libellant was afraid to stay in the house, she took the baby and went to her parents' home. That same evening he gave her her clothes and said 'There's your clothes, and you can get the hell out and stay out.' She said her father was with her at the time. Upon respondent's promise to do better libellant returned. But there was no material improvement in respondent's conduct; he again stayed out nights, drank to excess, and told libellant about the women that he had met and about his ability to have any one that he wanted. This continued until September, 1943, when libellant was obliged to leave him again. It was characteristic of respondent when told about his conduct to tell libellant that if she did not like what he said or did she could get out. After the separation is September, 1943, upon his solicitation libellant returned with the hope that their married life might continue notwithstanding

[ 166 Pa. Super. Page 439]

    the conduct to which she had been subjected. An incident in January, 1944, is indicative of his disposition and attitude toward libellant. While the baby was very ill and while waiting for the doctor he dressed and arranged to go out. Upon her request that he remain to see what was wrong with the child he swore at her and left. However, he came back finally and was there when the doctor arrived later in the evening. In the latter part of February, 1944, he again told libellant that she could get out, and asked her to give the key to the house to him. He remained away some nights, and for several days when at home he refused to speak to libellant or discuss the situation. He repeated his usual assertion 'you can get the hell out, you do not live here any more.' On the night of February 28, 1944, he went upstairs, took the baby, who was then 19 months of age, out of bed, brought her down and placed her in the lap of libellant saying 'there, you can take her, I never want to see her again.' Respondent pushed libellant out the door. With the child in its night clothes libellant took it to her parents. In addition, respondent took libellant's clothes and placed them on the porch of her parent's house, and again told her to stay out of the house, that he did not want to see her again. He changed the locks on the doors so that any key which libellant had could not be used.*fn2 He went to live with his parents, and after two months he disposed of the furniture. The climax to their married life on February 28, 1944, was a clear manifestation of his hate and estrangement, which, together with his previous course of conduct, constitutes such indignities to the person of libellant as

[ 166 Pa. Super. Page 440]

    to make her condition intolerable and her life burdensome. Although it does not appear that respondent ever made any bona fide offer to libellant to provide a home and live with her after February 28, 1944, she would be justified in a refusal to return had such an offer been made. Twice before she returned but her efforts to maintain the family relationship were futile. She would not be obliged to again subject herself to the treatment which she had been receiving from him.

We are not impressed with respondent's denials. On the other hand, the record clearly discloses his characteristics which in no small degree are corroborative of his unjustified course of conduct. On one occasion he says of himself, 'I'm the controlling factor.' He testified that he told libellant 'I'm damn sure it's not may business to dry the dishes.' And when libellant was obliged to consult a doctor he insisted that he should go with her 'just to see what goes here.'

We have not referred to every incident in the record, but they are also a part of respondent's course of conduct constituting indignities. The evidence recited is sufficient to entitle libellant to a divorce on the ground of indignities consisting of a course of conduct by respondent which was humiliating, degrading, and inconsistent with libellant's position and relations as a wife. See Wick v. Wick, 352 Pa. 25, 28, 42 A.2d 76. This is our conclusion from our independent examination of the lengthy record.

The decree of the court below is reversed, and the record is remitted with direction that a decree be entered by that court granting to libellant a divorce from the bonds of matrimony on the ground of indignities to the person.

RENO, J., absent.

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