John B. Nicklas, Jr., and McCrady & Nicklas, all of Pittsburgh, for appellant.
Wm. J. Graham, Clyde P. Bailey, Pittsburgh, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 170 Pa. Super. Page 590]
On July 8, 1943, Aida N. Marra began an action in the Court of Common Pleas of Allegheny County for a divorce from bed and board on the grounds of cruel and barbarous treatment and indignities. On June 6, 1949, the husband, Daniel A. Marra, filed a complaint asking for an absolute divorce on the ground of indignities. The two actions were consolidated for trial and were heard in the court below by Judge Marshall sitting without a jury. On March 28, 1951, the trial court after dismissing the husband's complaint entered an order for a decree of limited divorce in favor of the wife together with $300 a month permanent alimony and $2000 counsel fees. From the order dismissing his complaint and from the order in favor of his wife, the husband took these appeals.
At the time of the trial, the appellant was 50 years of age and the appellee 43. They were married on March 6, 1931, and have five children ranging in age from 4 to 18 years, the eldest of whom is married and living in California while the others are living with their mother in North Hills Estates, Allegheny County. Previous to the final separation of the parties on March 28, 1949 when the wife withdrew from the home, the parties had separated at least four times by the wife's leaving the home because of the husband's conduct, reconciliation subsequently having taken place each time, partly through the intercession of the pastor of their church and that of relatives.
The wife's testimony was found credible by the trial judge and we find no reason for rejecting his appraisal
[ 170 Pa. Super. Page 591]
of credibility. Her testimony consists in large part of a recital of the occasions upon which she left her husband and the home and her reasons for doing so.
She testified that she left for about ten days in 1941 because 'out of a clear sky * * * he ups with the pitcher of ice water and poured it all over the baby and I * * *' and 'Throwed the pitcher at us, a glass pitcher * * *'. She left again in May 1943 because 'Mr. Marra beat me bodily. * * * With his fists and kicked me in my leg, kicked my legs with his shoes so bad it broke open and I had to have medical attention * * * for about a period of six months * * *'. She testified that in January 1945, Marra 'tore the radio out of the wall and throwed it at me' striking her face and, as a result, her face 'was all black and blue afterwards'. She did not leave after this incident because Marra picked up a snow shovel 'and told me he would break my back with it, and I didn't dare step foot out of the door'. She left in October 1945, however, because 'he pulled me by the hair and kicked me, and I was pregnant at that time, and dragged me across the floor and pulled hair out of my head'. She left again in April 1948 because 'I was afraid of the man and feared the man. * * * One evening in my bedroom he put his hands around my throat and told me he had me just exactly where he wanted me and it would be just a matter of seconds that I would be out of this world. * * * He had his hands around my throat'. The final separation occurred March 28, 1949 because Marra 'threatened to throw me down the marble circular stairs. He told me that would not be murder; it would be accidental death'.
The appellant did not make any specific denial of the various incidents of violence charged but confined himself to a few general statements to the effect that he had ...