Appeal, No. 165, Oct. T., 1954, from order of Court of Common Pleas of Carbon County, Oct. T., 1946, No. 2, in case of Willard M. Gilham v. Jeanne Gilham. Order affirmed.
Carl A. Niehoff, Lehighton, for appellant.
William A. Wyatt, Lehighton, with him Frank X. York and Forrest J. Mervine, Stroudsburg, for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside and Ervin, JJ. (ross, A., absent).
[ 177 Pa. Super. Page 329]
Although the master recommended a divorce on the ground of adultery in this case, the court sustained exceptions to his report and dismissed the complaint. A consideration of the entire record convinces us that the case was properly decided. The order will be affirmed.
The parties were married in August 1941 and they lived together until November 26, 1942 in the Borough of Lehighton, when libellant was inducted into the armed forces. After a training period in a number of military camps, he was sent overseas and he spent a total of fifteen months of active service in North Africa and in Italy. During the period respondent lived with her parents in East Stroudsburg. After his discharge from the service libellant returned to Lehighton on November 30, 1945. Because of a housing shortage he was unable to set up a separate home and respondent remained in the home of her parents. The parties did resume marital relations however during weekends and respondent lived with her husband continuously, at the home of his parents for several weeks early in 1946. Libellant testified that on June 6, 1946 while taking his wife to her parents home in an automobile he became suspicious because of her attitude toward him
[ 177 Pa. Super. Page 330]
and he then insisted that she tell him the reason for what he interpreted as a disturbed conscience. In response, according to his testimony, she said that she had been out with one Carl Hamill at least once a month from July 1944 until just before libellant's return in November 1945. According to his testimony when she stated further that she was afraid that she had contracted a venereal disease, libellant drove back to Lehighton with his wife in the car and reported her confession to his parents, whereupon they all went to the office of Dr. Roger R. Rupp in Lehighton for the purpose of an examination of the defendant for venereal infection. Dr. Rupp testified that in his office he asked her: "Is there any reason for you to be examined... Were you out with anybody? And she said 'Yes.'" That was the extent of the questioning. A nurse in attendance testified that the above admission was made to Dr. Rupp in her presence and in the presence of libellant's parents. The result of the examination was
Under the circumstances, the admission made to Dr. Rupp was confidential and privileged by the Act of June 7, 1907, P.L. 462, 28 PS § 328, and since the nurse was in attendance in her professional capacity, the same principle closed her mouth. Cf. 58 Am. Jur., Witnesses, § 405. Accordingly we are bound to disregard their testimony as to the above admission. However the conversation was overheard by libellant's parents and their testimony was competent and credible evidence of the admission which the defendant then made. Third persons may testify to communications, overheard by them, however privileged as to the parties to the conversation. 58 Am. Jur., Witnesses, § 365. Cf. Machnofsky v. Smith et al., 101 Pa. Superior Ct. 578; Cridge's Estate, 289 Pa. 331, 137 A. 455. The dicta to the contrary in Wells v. Insurance Co., 187 Pa. 166,
[ 177 Pa. Super. Page 33140]
A. 802 does not accord with the weight of authority as to ...