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BOYER v. BOYER. (03/20/57)

March 20, 1957

BOYER, APPELLANT,
v.
BOYER.



Appeal, No. 246, Oct. T., 1956, from decree of Court of Common Pleas of Lehigh County, Sept. T., 1952, No. 285, in case of Matthias J. Boyer v. Pearle E. Boyer. Decree affirmed.

COUNSEL

James C. Lanshe, with him Joseph F. Fruhwirth, for appellant.

Ernest F. Ritter, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, and Carr, JJ. (ervin, J., absent).

Author: Woodside

[ 183 Pa. Super. Page 262]

OPINION BY WOODSIDE, J.

On August 27, 1952, Matthias J. Boyer filed a complaint seeking a divorce on the ground of indignities. Now, over 1600 days later, after nearly a million words have been written in the case, a final disposition of the matter is approaching.

In an action for divorce on the ground of indignities it is difficult to eliminate from the testimony as irrelevant anything either party did or said during the time they lived together as husband and wife, but counsel and master should devise some means of adequately presenting the necessary evidence without accumulating a record which requires more space than 14 volumes of this Court's Reports.

The master recommended that this divorce be refused, but the court below sustained the plaintiff's exceptions to the master's report, and granted the decree. We shall affirm the court.

It is incumbent upon us on appeal from a decree of divorce, except where there has been a jury trial, to review the testimony, and adjudge whether it sustained the complaint of the plaintiff. Neither the court

[ 183 Pa. Super. Page 263]

    below nor this Court can escape the burden of a careful consideration of the evidence to ascertain if it establishes the statutory grounds for a divorce. The rule generally applicable to proceedings before a master or an auditor, that a finding of fact will not be disturbed except for manifest error, is not applicable to divorce cases. Nor do the findings of fact made by a judge have the same effect on appeal as a verdict of a jury: McKrell v. McKrell, 352 Pa. 173, 179, 42 A.2d 609 (1945). We must examine for ourselves the testimony in cases heard without a jury and determine therefrom, independently of the findings of the master, or even the court below, whether in truth and in fact a legal cause of divorce has been made out.*fn1 Nacrelli v. Nacrelli, 288 Pa. 1, 5, 6, 136 A. 228 (1927); Dash v. Dash, 357 Pa. 125, 126, 127, 53 A.2d 89 (1947); Mendenhall v. Mendenhall, 12 Pa. Superior Ct. 290, 298 (1900); Hurley v. Hurley, 180 Pa. Superior Ct. 364, 366, 119 A.2d 634 (1956).

The master's report, although advisory only, is to be given the fullest consideration as regards the credibility of witnesses whom he has seen and heard, and in this respect his report should not be lightly disregarded. Brown v. Brown, 163 Pa. Superior Ct. 490, 493, 63 A.2d 130 (1949); Megoulas v. Megoulas, 166 Pa. Superior Ct. 510, 512, 72 A.2d 598 (1950); Smith v. Smith, 157 Pa. Superior Ct. 582, 583, 43 A.2d 371 (1945); Green v. Green, 182 Pa. Superior Ct. 287, 126 A.2d 477 (1956).

However, the master's advantage obtained through seeing and hearing the witnesses exists only where the findings depend upon the credibility of witnesses. A

[ 183 Pa. Super. Page 264]

    judge who reads the record can apply the law to the facts as easily as the person who saw and heard the witnesses. Here we can accept the findings of the master almost in their entirety, for he reached an erroneous conclusion, not because he believed the defendant and ...


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