George E. Beechwood, Conlen, LaBrum & Beechwood, all of Philadelphia, for appellant.
Thomas F. Mount, Joseph W. Henderson, Philadelphia, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 169 Pa. Super. Page 499]
On a charge of indignities the lower court entered a decree of divorce. In spite of the fact that the master,
[ 169 Pa. Super. Page 500]
from a patient analysis of volumes of testimony, recommended a decree, we find it necessary to reverse. The issue does not depend upon the credibility of witnesses but rather on the significance of undisputed facts established principally by plaintiff's own testimony which in our view reveal an injured but not an innocent husband. Under our divorce law -- as amended by the Act of March 19, 1943, P.L. 21, 23 P.S. § 10 -- to obtain a divorce from the bond of matrimony, a complaining spouse must be both injured and innocent.
In middle life plaintiff married the defendant on April 6, 1945, in New York City. It was a second marriage for him. Thereafter they lived in a more-than-adequate home provided by plaintiff in Philadelphia. He is Vice-President of Lavino Shipping Company. His duties in the management of the business are exacting. He has been successful and his income is large. Minor differences arose between the parties in 1946 and increased both in frequency and seriousness until June 1949 when the plaintiff left his wife. The gravamen of his complaint goes to the defendant's excessive drinking beginning in 1947 and his humiliation because of her conduct on occasions in public, especially among his friends and business associates. Plaintiff also charged that frequently when drinking to excess defendant was belligerent and bent upon tantalizing him in the home by false accusations imputing adultery with named women, and otherwise by berating him unreasoningly and with profanity, making his life unbearable by day and preventing him from getting necessary rest at night.
Defendant does not defend the charge on the ground that she is addicted to alcohol involuntarily. It is not asserted that she is an alcoholic and on that account unanswerable for her conduct in public or her attitude toward her husband in the privacy of their home. On
[ 169 Pa. Super. Page 501]
the contrary, in the face of what we accept as clear proofs to the contrary she denies that she has drunk liquor to excess. And from our independent consideration of the testimony we find it established that defendant while under the influence of intoxicating liquor is chargeable with acts constituting the course of conduct complained of by the plaintiff. Moreover our conclusion in this respect has been arrived at in total disregard of an unusual phase of plaintiff's evidence which we view as wholly incompetent and inadmissible, for reasons which we think it necessary to state because of the importance and novelty of the questions involved.
Plaintiff complained of frequent tirades he was subjected to by the defendant at night in their common bed chamber. The adjoining room was occupied by plaintiff's son, by a former marriage. Pursuant to prearrangement by plaintiff the son set up a microphone in the bedroom of the parties on the nights of April 7, 8 and 9th and the early morning of April 10th, 1949, and connected the device with a wire recording mechanism installed in his room. By this means he, with plaintiff's knowledge and consent, attempted to make a recording of what was said between the parties on the four occasions. ...