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HARRY Z. GENSEMER v. HILDA B. GENSEMER (11/09/54)

November 9, 1954

HARRY Z. GENSEMER
v.
HILDA B. GENSEMER



COUNSEL

Cletus C. Kilker, Girardville, for appellant.

H. G. Stutzman, Pottsville, for appellee.

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

Author: Ervin

[ 176 Pa. Super. Page 509]

ERVIN, Judge.

Plaintiff, Harry Z. Gensemer, instituted an action in divorce against Hilda B. Gensemer, defendant. The Master recommended a divorce on the ground of indignities but found that the charge of cruel and barbarous treatment had not been established. The lower court sustained a number of exceptions to the Master's findings and refused the divorce, relying principally upon the ground that the plaintiff was not the injured and innocent spouse. We are in accord with this conclusion. We are not unmindful of the well established principle that the report of the Master who saw and heard the witnesses is entitled to the fullest consideration. Seder v. Seder, 164 Pa. Super. 372, 64 A.2d 668; Sobotowich v. Sobotowich, 165 Pa. Super. 60, 67 A.2d 637; Graf v. Graf, 168 Pa. Super. 66, 76 A.2d 659; Silfies v. Silfies, 168 Pa. Super. 421, 79 A.2d 130; Van Houten v. Van Houten, 174 Pa. Super. 29, 98 A.2d 397.

However, when the testimony of the plaintiff is contradicted or explained by the defendant, a decree in divorce must be refused. Gerster v. Gerster, 166 Pa. Super. 105, 70 A.2d 429.

It must appear clearly and indubitably from the testimony that the plaintiff is the injured and innocent spouse before a decree in divorce may be granted on the grounds of indignities to the person. Othmer v. Othmer, 158 Pa. Super. 384, 45 A.2d 389; Wilson v. Wilson, 163 Pa. Super. 546, 63 A.2d 104; Carter v. Carter, 166 Pa. Super. 499, 72 A.2d 621.

The parties were married on December 5, 1951 and had three children, Ella Margaret Gensemer, now married to a member of the Schuylkill County Bar and herself a college graduate; George John Gensemer, a graduate of Gettysburg College and of Jefferson Medical

[ 176 Pa. Super. Page 510]

College, a qualified surgeon; and another son, Harry Z. Gensemer, Jr., married, and a businessman.

The parties lived together as man and wife until December 1941, when the plaintiff left his home and family. He did not support his wife from 1945 until 1952, when he was compelled to do so by a court order.

Colonel Arthur J. May and Mrs. Mabel E. Moyer were the only disinterested witnesses for the plaintiff. Colonel May testified that on one occasion Mrs. Gensemer called on the telephone and complained about her husband doing a lot of drinking and on another occasion she called him and said 'I'll tell you, it's too bad he's being involved with some woman around here and she's just putting him in the ground.' He also testified that he had no personal knowledge of his drinking excessively. This witness was never in the home where it is alleged he would frequently come in an intoxicated condition. Mrs. Moyer testified that on one occasion she and Mr. and Mrs. Gensemer were in a night club and had had a drink and after coming out and when they were in the car, Mrs. Gensemer took her shoe off and hit Mr. Gensemer on the head with it. On cross-examination this witness was very forgetful and evasive. She couldn't remember whether anything was said before the striking. She couldn't remember whether Mr. Gensemer wanted to stop at a carnival and whether Mrs. Gensemer said, 'No, if you don't take me home I'll hit you with my shoe.' She admitted that in the taproom a couple of girls came down the steps but she couldn't recall whether Mr. ...


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