Appeal, No. 261, April T., 1961, from decree of Court of Common Pleas of Allegheny County, Oct. T., 1951, No. 3299, in case of John K. Simons v. Barbara Simons. Decree affirmed; reargument refused January 8, 1962.
Davis G. Yohe, with him Robert F. Burkardt, and Peacock, Keller & Yohe, for appellant.
David Turets, with him M. David Turets, for appellee.
Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).
[ 196 Pa. Super. Page 652]
OPINION BY MONTGOMERY, J.
This is an appeal from an order refusing a divorce a.v.m. brought on alleged grounds of cruel and barbarous treatment and indignities to the person. The parties were married November 4, 1950, after which they lived in a house owned by the appellant's parents, who lived downstairs. On January 26, 1951 appellee entered St. Francis Hospital for three months. After her discharge she again resided with her husband until June 8, 1951 when she went to live with her mother. During 1952 the parties apparently got along well, but lived apart. On January 1, 1953 the parties again commenced cohabitation and moved into a house in Bethel Borough. Appellant's parents lived next door and owned both houses. On May 12, 1956 appellee attempted suicide by drinking rubbing alcohol and was hospitalized for four days. She was then committed to Woodville State Hospital as a mental patient and remained there until December 6, 1956 when she was released and returned to live with the appellant. The last date the parties lived together was March 26, 1957 when the
[ 196 Pa. Super. Page 653]
appellee re-entered Woodville Hospital where she remained until May 8, 1958 when she was again released and went to live with her brother.
The appellant first filed a complaint in divorce in the Court of Common Pleas of Allegheny County on September 24, 1951, and after service thereof and after the appellant had been ruled for a bill of particulars, the proceeding came to a standstill. In December of 1959 present counsel entered the case, and after the filing of a bill of particulars, hearings were held on April 8, 1960 and June 16, 1960. On June 7, 1961 an order was filed by the lower court refusing the divorce.
Appellant alleges that the appellee had made unprovoked attacks on him with a knife on at least two occasions. The appellant and his mother both testified that on one occasion the appellee attempted to suffocate the appellant. These acts or threats to do bodily harm were accompanied by verbal threats by the appellee that she intended to kill the appellant. These alleged acts of cruelty were all denied in full. Appellant also alleges refusal by the appellee to have sexual relations.
It is true, as the appellant contends, that a single act of cruelty may be so severe and with such attending circumstances of atrocity as to justify a divorce. Eberly v. Eberly, 154 Pa. Superior Ct. 641, 36 A.2d 729. Cruel and barbarous treatment within the statute making such treatment a ground of divorce implies a merciless and savage disposition leading to conduct amounting to actual personal violence, or creating a reasonable apprehension thereof, so as to render further cohabitation dangerous to physical safety. Rankin v. Rankin, 181 Pa. Superior Ct. 414, 124 A.2d 639; Knaus v. Knaus, 173 Pa. Superior Ct. 111, 95 A.2d 358. Where ...