Appeal, No. 115, March T., 1955, from order of the Superior Court of Pennsylvania, April T., 1954, No. 135, in case of Aloysius A. Zorn v. Stella M. Zorn. Order reversed.
Clyde P. Bailey, with him Weller, Wicks & Wallace, for appellant.
Harry s. Kalson, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
This appeal is from an order by the Superior Court, two Judges dissenting, directing the lower court to enter a decree of absolute divorce. Defendant, the wife, was charged with constructive desertion. The master recommended a divorce. The Court of Common Pleas rejected this recommendation and dismissed the complaint. The Superior Court reversed.
Judge GUNTHER, in the majority opinion of the Superior Court, accurately states the facts: "Plaintiff testified that on March 18, 1948, he came home very
late from a business appointment and became engaged in a quarrel with his wife; that she ordered him to leave the house and threw his clothes at him; that she was 'backed up' by several of their adult sons; that he thereupon left the house; and that he made several later offers to return, but was refused by defendant. Plaintiff's witness, who had known both parties for years and who had lived in their home, testified that in 1951 and again in 1952 the defendant told him that plaintiff offered to return to her but she didn't want him back."
In the court of common pleas the opinion writer states with considerable force: "... the evidence to us seems strongly and abundantly in favor of the Defendant. ..." It is, of course, true that in divorce litigation courts are not bound by conclusions of a master as to credibility: Oliver v. Oliver, 172 Pa. Superior Ct. 600, 94 A.2d 124, and cases therein cited. While the court of common pleas concluded not to disturb the findings of fact, it reversed upon the ground that the plaintiff's evidence did not support a decree of divorce on the ground of desertion. With this we agree.
Judge ARNOLD (now Mr. Justice ARNOLD of this Court) in Reiter v. Reiter, 159 Pa. Superior Ct. 344, 48 A.2d 66, speaking for a unanimous court, decided that where a spouse is wilfully and maliciously put out by force or justifiable fear o immediate bodily harm, or is locked out against his or her will, and without his or her consent, and such conduct is without reasonable cause, and persisted in for two years, there is a desertion in the words of the statute. He said (p. 348):
"The Divorce Law of 1929 (23 P.S. § 1 et seq.) defines the causes for divorce, and in subsection (d) of § 10 provides: '(d) [Where the other spouse] shall have ...