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HORTON v. HORTON (01/17/52)

January 17, 1952

HORTON
v.
HORTON



COUNSEL

Harold S. Hampson, Warren, for appellant.

C. Henry Nicholson, Warren, for appellee.

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

Author: Reno

[ 170 Pa. Super. Page 210]

RENO, Judge.

Plaintiff was granted a divorce on the ground of indignities. The wife's appeal questions whether he was the 'injured and innocent spouse' within the meaning of the Divorce Law of May 2, 1929, P.L. 1237, § 10, 23 P.S. § 10. The answer turns upon the credibility of the parties and their witnesses. The case was heard by a judge without a jury, and the trial judge found defendant's testimony incredible and unworthy of belief. His conclusion as to which of the parties is to be believed will not be lightly disturbed. Spence v. Spence, 167 Pa. Super. 248, 74 A.2d 495; Bliss v. Bliss, 167 Pa. Super. 252, 75 A.2d 1.

The parties were married in 1921 and shortly thereafter plaintiff charges his wife told him he 'was no good' and that he 'wasn't as good as her first husband.' She frequently called him opprobrious names. On one occasion when they were entertaining friends at home the wife of defendant's nephew was found on the bathroom floor. In the presence of friends and relatives plaintiff picked her up and as he carried her to the door defendant struck him on the said of the head with a flatiron. Defendant further exhibited her unfounded jealousy by telling husband's sister that he was running around and drinking two-thirds of the time. She frequently made similar accusations to plaintiff. Mrs. Liebel, a widow, to whom plaintiff was accused of showing too much attention, testified that

[ 170 Pa. Super. Page 211]

    three or four times a week defendant told her plaintiff was 'running around with other women.' During the past year the parties have seldom spoken and especially at meal time the plaintiff received the 'silent treatment.' When he would come home from work defendant called the dog to greet him. Plaintiff's witnesses, including his mother, who lived with the parties, testified they heard defendant call him vulgar names. His mother also stated that she was present when defendant gave her son 'a crack over the head with a flatiron.' She testified she heard plaintiff on one occasion request his wife to come to the living room to meet his friends and defendant's reply was 'I don't want to meet your damn friends.'

Much of the testimony involved plaintiff's association with Mrs. Liebel. She and her husband, prior to his death, were close friends of the parties. In fact defendant frequently suggested plaintiff stop in on a Sunday morning to chat with Mrs. Liebel. Defendant's subsequent display of jealousy toward this woman is merely indicative of her general suspicious attitude. True, plaintiff saw Mrs. Liebel almost weekly but there is no evidence their relationship was improper.

This is not the type situation which confronted us in Priest v. Priest, 162 Pa. Super. 232, 57 A.2d 437, where the husband's conduct invited his spouse's accusations of marital infidelity. Continuous unfounded accusations of infidelity when accompanied, as here, by other degrading or humiliating conduct persisted in sufficiently long is enough to make our a case of indignities, Silfies v. Silfies, 168 Pa. Super. 421, 79 A.2d 130, provided the accused spouse's conduct does not reasonably lend support to such allegations. Blose v. Blose, 163 Pa. Super. 322, 61 A.2d 370; Thornton v. Thornton, 168 Pa. Super. 391, 77 A.2d 691.

Defendant's testimony read in the printed record, impresses us as incredible. ...


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