Russell S. Machmer, Sunbury, for appellant.
No book or appearance for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, and Arnold, JJ.
[ 170 Pa. Super. Page 239]
The plaintiff, Edna Mae Newman, filed her complaint in the Court of Common Pleas of Northumberland
[ 170 Pa. Super. Page 240]
County, praying for a divorce a. v. m. on the ground of adultery. The defendant answered the complaint, denying adultery and setting up recrimination as an additional defense. The case was referred to a master who, after several hearings, filed a report in which he recommended that the complaint be dismissed. To this report the plaintiff filed exceptions. The court below sustained the plaintiff's exceptions which complained of the finding of the master that the plaintiff had not proved adultery, but nevertheless refused a divorce because the plaintiff was 'chargeable with misconduct approaching indignities' and that she was 'not the innocent and injured spouse'. From that order this appeal was taken.
The parties to this action were married on May 20, 1937 and separated April 8, 1949. At the time of the hearings the plaintiff was 37 years of age and the defendant 40. No children were born of the marriage. The events upon which this action is predicated are alleged to have occurred subsequently to July 1944, when the defendant was employed by an insurance firm at its office in York. Employed in the same office was Lucille Shillito, a married woman, the name co-respondent in this case.
The plaintiff testified that in August of 1945 she noticed a change in her husband; that he refused to have sexual intercourse with her and spent more time away from home. At about the same time she found certain letters written to her husband by Lucille Shillito. The letters show clearly that the association between defendant and the writer was far more than mere friendship. The plaintiff testified further that her husband received 'many' telephone calls from Mrs. Shillito.
In October of 1945, according to the plaintiff, the defendant told her that he was going to a business
[ 170 Pa. Super. Page 241]
meeting in Columbus, Ohio, and did in fact go away from home for a period of five days. Upon his return, she 'told him she had been correspondence to the effect where he planned to meet her [Lucille Shillito] in Pittsburgh'. The defendant is then alleged to have admitted sexual ...