Roy Pressman, Philadelphia, for appellant.
Howard C. Cummings, Francis D. Pastorius, and George T. Jackson, Philadelphia, for appellee.
Irving R. Shull, Alfred I. Ginsburg, and Bernard L. Lemisch, Philadelphia, for Maude Allen Lee, intervenor.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 168 Pa. Super. Page 340]
Lillian Connor, appellee, instituted this action in divorce charging her husband with (1) indignities to the person; (2) cruel and barbarous treatment; and (3) adultery. The master appointed by the court below recommended that a divorce be granted on the ground of adultery, and that the complaint be dismissed as to the remaining charges. The court below adopted the recommendations of the master and entered a decree of divorce. Defendant now appeals and urges that the decree should be reversed because (1) the testimony supporting the charge of adultery comes from witnesses whose testimony is tainted by self-interest and fraud; that the court below erred in giving credence to said
[ 168 Pa. Super. Page 341]
testimony; and (2) that the plaintiff has not met the burden of proving the charge alleged by clear and convincing testimony.
The parties were married in 1935, and shortly thereafter moved to Philadelphia where they lived until they separated in January, 1947. The evidence adduced by the plaintiff and her witnesses indicated that adultery was committed in April and May, 1947. Plaintiff testified that she saw the defendant and co-respondent together at various public places; that she saw the co-respondent housecleaning rooms in the defendant's home. Plaintiff testified that in July, 1947, she went to her former home at 1253 North 13th Street, Philadelphia, where the parties had lived together, and that she there spoke to the co-respondent, Maude Allen Lee, who informed her that she was now Mrs. Connor. Defendant attempted to prove that plaintiff inaccurately identified the person representing herself as the new Mrs. Connor. The master concluded, however, that plaintiff's identification of the paramour was credible.
Strenuous complaint is made by appellant concerning the credibility of the two following witnesses who testified on behalf of plaintiff. A careful examination of their testimony discloses that there is no merit to appellant's complaint that the testimony of these two witnesses is tainted by 'self-interest and palpable fraud'. These two witnesses are Maggie Lee Burgess and her husband, Fleet Burgess. Maggie Lee Burgess and her husband were tenants of the defendant and occupied living quarters on the second floor front of his home. Maggie Burgess testified positively of her own knowledge that Maude Lee came to live at the Connor home in the early part of 1947, shortly after the parties had separated, and that the defendant and Mrs. Lee shared the second floor rear bedroom during the early part of 1947. She testified that on or about April 1,
[ 168 Pa. Super. Page 342]
at about 8:00 in the morning, a man whom she described as a bill collector rang the doorbell. She answered and the man asked for Mr. Connor, the defendant, whereupon the witness and caller proceeded up the stairway to the bedroom at the rear of the second floor. Mrs. Burgess testified that the co-respondent appeared at the door of this room clad in a nightgown; that Mrs. Burgess asked Maude Lee where Mr. Connor was, that a man wished to see him, whereupon Maude Lee turned from the door and addressed the defendant who was in bed. Fleet Burgess testified that Mrs. Lee moved into defendant's home shortly after the parties had separated in January, 1947; that he saw Mrs. Lee cleaning parts of the house during January, 1947, and that on one occasion when he returned to the room on the second floor rear to pay his rent both defendant and Mrs. Lee were in the bedroom, the latter being clothed in a housecoat. The Burgesses both testified that they moved from the premises on May 17, 1947. There was an effort on the part of appellant to discredit the testimony of the Burgesses, by attempting to prove that on or about April 1, 1947, the Burgesses no longer were living as tenants in defendant's home. To prove this fact, a handwriting expert was called by defendant to prove, as a forgery, a certain rent receipt introduced by plaintiff, and claimed to have been signed by defendant, showing that the Burgesses had paid rent up to and including May 17, 1947. Defendant testified that he did not sign the receipt; that it was a forgery. The testimony of defendant in regard ...