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August 30, 1954



R. A. McCrady, McCrady & Nicklas, Pittsburgh, for appellant.

Edward C. Boyle, William J. Graham, Clyde P. Bailey, Pittsburgh, for appellee.

Before Hirt, Acting P. J., and Ross, Wright, Woodside and Ervin, JJ.

Author: Hirt

[ 176 Pa. Super. Page 343]

HIRT, Judge.

The parties, now in middle life, were married in 1936. There are no children. The final separation occurred on March 17, 1951 when Kermit McFarland left his wife and their common home in Pittsburgh. She brought this action for divorce from bed and board in March 1952. The case was thoroughly tried before a Master who, in his report concluded that 'Plaintiff is not entitled to a decree of divorce a mensa et thoro on the grounds alleged in the complaint.' The Master accordingly recommended that the complaint be dismissed. Exceptions to the Master's findings and conclusions were overruled by the lower court and plaintiff was denied a divorce. Plaintiff in her complaint, in the language of Section 11 of the Act of may 2, 1929, P.L. 1237, 23 P.S. § 11, charged that her husband had 'maliciously abandoned his family' and had 'offered such indignities to her person as to render her condition intolerable and life burdensome.' Notwithstanding the consideration which we are bound to give to the report of the Master, especially as to his estimates

[ 176 Pa. Super. Page 344]

    of credibility of the witnesses, our independent review of the record convinces us that plaintiff has clearly established malicious abandonment and is entitled to a divorce on that ground. The order will be reversed.

A husband is justified in withdrawing from the family relation only where the causes for leaving would constitute valid grounds for the divorce of his wife at his suit. Andrew v. Andrew, 143 Pa. Super. 68, 17 A.2d 673. Defendant left the home without good reason and the circumstances establish that the leaving was malicious. He had been responsibly employed for some time as an editorial writer on the staff of the Pittsburgh Press, a Scripps-Howard newspaper. His attitude toward his wife began to change in 1949. He then ceased taking her out socially and she no longer was asked to accompany him to the usual functions which he attended in the interest of his newspaper. His indifference to his wife developed into an attitude of hostility toward her. In the spring of 1950 he began staying away from his home consistently and he had his meals elsewhere. In January 1951 he returned home from a hospital after an operation for appendicitis. There were words between the parties and on the morning of March 17, 1951 the defendant left the home for the Hotel Pittsburgher. He occupied a room there until the following June when he was transferred to a newspaper in Washington D. C., by his employers, where he has since lived alone. On leaving for Washington he did not ask his wife to go with him.

The record clearly supplies the reason for the deterioration of the marriage. Defendant and his secretary had become enamoured of each other. Proof of their attachment depends upon the admissibility of copies made by plaintiff of typewritten love letters which she allegedly found in her husband's wallet over a period ending in November 1950. On the first occasion

[ 176 Pa. Super. Page 345]

    on August 15, 1950 she became suspicious when her husband spent the evening in the home at a portable typewriter. During the night she found the first of the letters. She secretly made a pencil copy of it and later made a number of typewritten copies from her transcript of the original. Other letters were found in defendant's wallet from which she made copies in the same way. Notwithstanding the denials of both defendant and the secretary we are convinced that three of the letters, admitted as exhibits by copies, were written by him and two of them by her. The plaintiff in our view was incapable of composing them. The style of the letters attributed to the husband is that of an editor's desk -- logical method and a discriminating use of expressive language. The letters have the ring of reality and even a capable craftsman could not have created an illusion of the sincerity with which the letters speak. The reference to a beloved editor of the Pittsburgh Press, who had recently died, as 'Ed' and the use of 'S.H.' well may be accepted as the office usage of the newspaper staff in referring to the deceased editor and Scripps-Howard. The fact that none of the letters bore the name of the writer is a circumstance in favor of their authenticity rather than the contrary. One perpetrating a fraud would likely attach a signatory name in some form which would impute authorship to the person intended to be injured. And if the letters were fabricated at the instance of plaintiff it is highly probable that, to support the charge of indignities, ...

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