Harry Goldbacher, Philadelphia, for appellant.
William N. Nitzberg, Philadelphia, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 172 Pa. Super. Page 601]
The essential question presented by this appeal is whether the plaintiff husband in this divorce action has sustained the burden of proving that he is the 'injured and innocent spouse' within the meaning of our Divorce Law of May 2, 1929, P.L. 1237, sec. 10, as amended, 23 P.S. § 10.
George Y. Oliver in his complaint alleged that his wife, over a period of years beginning about 1928, had subjected him to indignities to the person and cruel and barbarous treatment. The master who heard the case recommended that the divorce be refused and, after exceptions to the master's report were dismissed by the court below, plaintiff appealed to this Court.
The parties, both natives of Philadelphia and both approximately 46 years old, were married on November 7, 1927, and have resided at various addresses in that city ever since. They have no children. They are presently living in the home at 4947 Walnut Street which they own by the entireties, but occupy separate
[ 172 Pa. Super. Page 602]
quarters therein, marital relations having ceased early in 1948.
The charge of cruel and barbarous treatment is refuted by the physical facts. Cruel and barbarous treatment consists of actual personal violence or a reasonable apprehension thereof, or such course of treatment as endangers life or health and renders cohabitation unsafe. Campbell v. Campbell, 129 Pa. Super. 106, 194 A. 760; Edelman v. Edelman, 165 Pa. Super. 485, 69 A.2d 165. Clearly, if plaintiff feared for his physical safety at the hands of defendant he would not now be sharing the common home with her. We, therefore, confine our consideration of the case solely to the charge of indignities.
Testimony as the indignities complained of, which allegedly extended over a period of 20 years, was elicited at four separate hearings and covers 370 pages of typewritten testimony. The master made no affirmative finding as to credibility but has furnished us with a thorough and comprehensive analysis of the various incidents, the existence of which is established but as to which the versions of the parties are, for the most part, diametrically opposed. We are aided also in our study of this mass of charges and counter-charges by the able opinion of the learned court below.
Plaintiff charged his wife inter alia, with accusing him unjustly of improper conduct with other women, with sex perversion with certain named male friends of his, with immoral conduct on her part with other men, with neglecting him and their home in order to care for members of her immediate family, with directing abusive and profane language at him, with physical violence toward him and his property, and with other conduct from which he contended ...