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ZIMMERMAN v. ZIMMERMAN. (04/12/62)

April 12, 1962

ZIMMERMAN, APPELLANT,
v.
ZIMMERMAN.



Appeal, No. 386, Oct. T., 1961, from order of Court of Common Pleas of Adams County, Oct. T., 1959, No. 96, in case of Eleanor Zimmerman v. Eugene Walter Zimmerman. Order affirmed.

COUNSEL

Richard A. Brown, with him Brown, Swope & MacPhail, for appellant.

John H. Bream, with him J. Francis Yake, for appellee.

Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).

Author: Flood

[ 198 Pa. Super. Page 27]

OPINION BY FLOOD, J.

In this action by Mrs. Zimmerman for divorce from bed and board upon the grounds of adultery and indignities to the person, both the master and the court found her allegations unproved and the complaint was dismissed. If there was any adultery it was condoned, and the substantial question before us is whether the plaintiff has sustained the charge of indignities. This depends upon whether the defendant's actions with reference to his secretary, the woman with whom he is alleged to have committed adultery, constituted a course of action calculated to make plaintiff's condition intolerable and her life burdensome. Under such circumstances, proof of a single act of adultery, or even more than one such act, is insufficient unless a course of improper conduct is shown. Here the evidence is insufficient to prove either adultery or a course of improper conduct such as to amount to indignities.

[ 198 Pa. Super. Page 28]

The evidence of defendant's improper conduct consists chiefly of two incidents. The wife says that on July 4, 1958, she came upon him with his hand inside the secretary's dress, playing with her, and her witness, Mrs. Knessel, testified that she saw him sitting on the couch beside the secretary, feeling her breasts. Mrs. Knessel did not fix the date of this incident but she says she told the plaintiff about it in February, 1959. While both incidents might well be shocking to the wife's sensibilities, the parties were fully clothed in both cases, and, as the wife herself said with regard to the incident to which she testified, it wouldn't be possible to commit adultery in the position in which she saw them.

This evidence, if believed, might be sufficient to show libidinous inclination, but there was no evidence that Mr. Zimmerman and the secretary were ever seen together except in the office or in public places. The husband's office and the apartment in which the parties lived were just across the hall from each other. He seemed to be a man whose work was the most important thing in his life. There is little evidence that he was ever away from his wife very long except when he was across the hall in his office. While both apartment and office were in a large motel, no one testified, nor was there any hint in the testimony, that the defendant and his secretary were ever seen together in a bedroom. No proof sufficient to show a course of adulterous conduct is to be found in the evidence.

The plaintiff also complains that, while she insisted on July 4, 1958, that the secretary be discharged, her husband refused to comply with her demand. However, for nine months after that date the secretary remained on the job. Zimmerman and her husband lived together as husband and wife until the next April. During that period they went together on vacations to Hawaii and to Florida. It is hard to see from the testimony

[ 198 Pa. Super. Page 29]

    that this really humiliated Mrs. Zimmerman or was otherwise an indignity to her. According to her own testimony, she continued to press the matter, but for long periods she said nothing about it. While she said that she gave him an ultimatum about it in February, before they went to Florida, she specifically stated that she did not mention it during any of the extended vacations the parties took in Hawaii and Florida between July when the incident occurred and April when she ...


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