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HARDIMAN v. HARDIMAN (03/20/50)

March 20, 1950

HARDIMAN
v.
HARDIMAN



COUNSEL

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 ...


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