Samuel Halbert, Philadelphia, for appellant.
Herman A. Becker, Philadelphia, M. B. Elwert, Philadelphia, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 171 Pa. Super. Page 534]
The lower court, in effect, adopted the findings and the recommendation of the Master and entered a decree of divorce on the ground of indignities. Without doing violence to the rule that the report of a Master, who has seen and heard the witnesses, is entitled to the fullest consideration, we are obliged to reverse the decree. The controlling issues are not dependent upon estimates of the credibility of witnesses but rather on the conclusions to be drawn from facts established by indisputable evidence.
Following their marriage in March 1929 the parties made their home with defendant's parents at 616 Sears Street in Philadelphia. Plaintiff left her husband and lived with her parents for nine months in 1936 because, according to her testimony, he refused to go to work and provide a home separate and apart from that of his parents. She however returned to the home which she had left, when his parents became bedridden and needed her help. Apparently she abandoned her demand for a separate apartment, for she continued to live in the same house until the death of both of his parents in 1942 and thereafter until she finally left her husband on March 4, 1950.
Defendant's parents by will devised their home at 616 Sears Street, together with three other modest row houses to the defendant. While living with plaintiff defendant did not work steadily at his trade as a carpenter but he had made it a practice to turn over his entire earnings to his wife. And after acquiring the four houses from his parents he put the title to the properties in his name and that of his wife by entireties.
Plaintiff complained of abnormal sexual demands made upon her by defendant over a period of years, but the testimony indicates that she was able to control his demands in that respect. The seeds of discord which
[ 171 Pa. Super. Page 535]
ultimately broke up the home were sown in 1942 when defendant employed John Mattioli, a building contractor, to remodel the houses. Mattioli and his wife thereupon became frequent visitors in the Orsuto home and Mattioli often was there alone. The charges upon which plaintiff principally relies are thus stated in her bill of particulars: 'Commencing in 1948, and continuing during the course of their cohabitation together the defendant, without any cause for such statements, falsely [in the presence of others] accused the plaintiff of committing adultery' which 'false accusations were coupled with obsence, indecent, profane and vulgar language and were made without any apparent cause except an unfounded jealousy'; and 'Commencing in 1948 * * * the defendant has repeatedly and continually inflicted physical violence upon the person of the plaintiff'. There is credible evidence of occasional violence without serious physical injury and there can be no doubt that beginning early in 1948 the defendant openly charged his wife with immoral conduct in language which could not be misunderstood. Defendant had just cause for his aspersions charging plaintiff with immoral conduct. Plaintiff's testimony as to physical abuse relates to isolated incidents, provoked by her improper conduct, which do not add up to a course of conduct amounting to indignities as contemplated by our divorce law. Monaco v. Monaco, 160 Pa. Super. 117, 50 A.2d 520.
There are the circumstances which ended in the disruption of the home of the parties: The remodeling of the houses on Sears Street continued into 1945 and John Mattioli was in the home of the parties every day. Mottioli and this plaintiff were often alone together in his car. In May 1947 Mattioli took plaintiff with him to Oaklyn in ...