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ROBINSON v. ROBINSON (06/11/57)

June 11, 1957

ROBINSON
v.
ROBINSON, APPELLANT.



Appeal, No. 115, April T., 1956, from decree of Court of Common Pleas of Allegheny County, Jan. T., 1955, No. 3077, in case of John H. Robinson v. Lucille Brown Robinson. Decree affirmed.

COUNSEL

V. J. Rich, with him Margiotti & Casey, for appellant.

Richard F. Jones, with him Wendell G. Freeland, and Jones, Smith & Freeland, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Carr, JJ.

Author: Ervin

[ 183 Pa. Super. Page 575]

OPINION BY ERVIN, J.

This is an appeal from a decree granting a divorce a.v.m. to the plaintiff on the ground of indignities to the person. The parties were married on June 29, 1954 and the divorce action was filed on December 27, 1954. The grounds alleged were indignities to the person and cruel and barbarous treatment. Four hearings were held before the master, who recommended a decree of divorce on both grounds. Exceptions were filed by the defendant, but the court below entered a decree of divorce on the ground of indignities to the person.

The master had the advantage of seeing and hearing the parties and their witnesses and observing their appearance and demeanor while testifying whereas we are confined to the printed record. The demeanor of witnesses is the very touchstone of credibility and may well be the deciding factor in appraising trustworthiness. Megoulas v. Megoulas, 166 Pa. Superior Ct. 510, 512, 72 A.2d 598.

The master concluded that the weight of the credible testimony rested with the plaintiff. While we are not bound by his findings, his conclusion upon the credibility of witnesses must be given the fullest consideration and should not be lightly disregarded. Brown v. Brown, 163 Pa. Superior Ct. 490, 63 A.2d 130. After a careful and independent review of the record, we conclude that the decree should be affirmed.

[ 183 Pa. Super. Page 576]

On June 29, 1954, the date of the marriage, plaintiff was 73 and the defendant was 45. Defendant's two prior marriages ended in divorce. Plaintiff's first wife died on December 6, 1953. The parties became engaged on January 1, 1954. After their marriage on June 29, 1954 the parties took up residence at the home of the plaintiff in Allison Park, Allegheny County, Pennsylvania. In July or August of 1954 the defendant picked up a big skillet and struck a kitchen table and sink, damaging both. In addition, defendant broke a number of dishes. The defendant then left the plaintiff but returned in four or five days. Approximately three weeks later the defendant broke an old-fashioned clock which the plaintiff was fond of, together with a second clock and more dishes. After the incident the defendant left the plaintiff for four or five days before she returned. Three or four weeks later, the defendant again broke dishes and left the plaintiff. She returned four or five days later. When a 45-year-old defendant breaks the personal property of a 73-year-old plaintiff and leaves him three times, within four months of the date of the marriage, to take care of himself and his home, it is evidence from which an inference of settled hate and estrangement may be found.

On October 4, 1954, while the plaintiff was in bed, the defendant threw a butcher knife at him. The knife weighed about one pound and had a nine-inch blade. Fortunately for the plaintiff, she missed. However, not being satisfied with her poor marksmanship, she tried again and threw a crockery slop jar at him. Again she missed the mark. While the plaintiff was leaving the house to summon the police, the defendant threw another object at him.

On October 6 or 7, 1954 the defendant returned to the plaintiff's home, with her daughter, to get some of her clothes. The defendant, unknown to the plaintiff,

[ 183 Pa. Super. Page 577]

    took from its hiding place a strong box containing over $30,000.00 and other valuable papers which belonged to plaintiff, and left. When the plaintiff discovered that the strong box was gone, he questioned the defendant. She did not return it and legal proceedings were instituted to effect its recovery.

On October 11 or 12, 1954, the defendant again returned to the plaintiff. One night, while the plaintiff was sleeping in a downstairs bedroom, the defendant fired a revolver out of a kitchen window. The plaintiff managed to take the gun away from her, but a struggle ensued during which the defendant attempted to strike the plaintiff with a broom. The plaintiff took the broom away from her but she grabbed him in the groin. Finally, the defendant, who weighed approximately 225 pounds, fell to the floor. The defendant again left the plaintiff but she returned in December of 1954.

Two days before Christmas, 1954, while at the dinner table, the defendant threw a fork at the plaintiff. It was 11 5/8 inches long and weighed about one pound. The defendant forced the plaintiff to the floor, tried to bite the plaintiff, then spit at him a dozen times. She then yelled "Murder, murder, murder." The plaintiff called for the defendant's daughter. While plaintiff was helping the defendant out of the house, she attempted to throw her weight against him but fell into a rhododendron bush. The plaintiff ran back into the house, whereupon the defendant broke the front door glass. Shortly thereafter the plaintiff filed this divorce action. None of the incidents above described ...


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