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BROBST v. BROBST (07/17/52)

July 17, 1952

BROBST
v.
BROBST



COUNSEL

Smith & Eves, Hervey B. Smith, Bloomsburg, for appellant.

Donald A. Lewis, Catawissa, for appellee.

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

Author: Gunther

[ 171 Pa. Super. Page 500]

GUNTHER, Judge.

John C. Brobst instituted this action in divorce charging his wife with indignities and adultery. The charge of indignities was subsequently withdrawn with court approval. The master recommended that a divorce be granted on the ground of adultery. Exceptions to the master's report were dismissed by the court below and a decree in divorce granted. The wife now appeals.

The parties were married on February 1, 1932, and separated sometime in March, 1950. After a painstaking and independent examination of the record, we are agreed that the court below erred in concluding that the defense of recrimination was not established. We are persuaded that there is ample evidence of a clear and positive nature establishing that the plaintiff was likewise guilty of adultery; that the record is replete with incidents, hereinafter related, showing both opportunity and adulterous inclinations on the part of plaintiff requiring that the decree be reversed and the complaint dismissed.

It is neither necessary nor desirable for us to relate in detail the sordid and reprehensible conduct of the defendant for, assuming, arguendo, that the plaintiff has made out a case of adultery, the record also is replete with sufficient evidence from disinterested witnesses establishing that plaintiff was likewise guilty of similar conduct which under ยง 52 of The Divorce Law

[ 171 Pa. Super. Page 501]

    is a perpetual bar. Section 52 of The Divorce Law provides in parts pertinent here that 'In any action or suit for divorce for the cause of adultery, if * * * it shall appear in the evidence, that the libellant has been guilty of the like crime * * * it shall be a good defense and a perpetual bar against the same.'

Initially, a word concerning the credibility of plaintiff is in order. The master concluded, we think perversely, that plaintiff was to be believed; that his disposition to tell the truth was not impeached in any material respect. We need point only to one incident which to our minds clearly discloses that his testimony must be accepted with extreme caution. He alleged that his wife was guilty of adultery with one Follmer, and that he observed the parties, flagrante delicto, by eavesdropping. The master conducted an investigation by going to the scene of the alleged misconduct and making an observation under circumstances precisely the same as those testified to by plaintiff and concluded that it was absolutely impossible to observe defendant and Follmer as plaintiff testified; that plaintiff under no circumstances could have seen the act of adultery as complained of and as testified to by him. Despite this finding of incredible testimony, the master considered plaintiff's further evidence as verity. We have no such confidence in his testimony and conclude that his disposition for telling the truth was seriously and materially impeached. The master in his report tacitly conceded as much for he wrote that 'Never has he been connected with a proceeding wherein the testimony has been so unsatisfactory'. Even the court below had some doubt on the subject for it said: 'We have read the testimony at length and agree that the conduct of both parties presents a sordid and reprehensible mode of life'. (Italics supplied.)

There can be little doubt but that plaintiff was guilty of running around ...


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