Appeal, No. 116, April T., 1962, from order of County Court of Allegheny County, No. C-681 of 1961, in case of Commonwealth ex rel. Ann R. Reddick v. Albert Reddick. Order affirmed.
John L. Bailey, with him William J. Graham, and Weller, Wicks & Wallace, for appellant.
Samuel Goldstock, with him Henry H. Foster, Jr., for appellee.
Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.
[ 198 Pa. Super. Page 113]
This is an appeal by Albert Reddick from an order of the County Court of Allegheny County, entered January 11, 1962, requiring him to pay the sum of $50.00 a week for the support of his wife, Ann Reddick. No question is raised concerning the amount of the order.
The parties were married on September 11, 1935, and have no children. Apart from two brief separations and the period that the husband was in military service, they resided together until the wife in military common home on March 5, 1959. On March 31, 1959, the wife filed a complaint in divorce a mensa et thoro on the ground of indignities to the person. This complaint was dismissed by the Court of Common Pleas of Allegheny County and on appeal to this court, the decree was affirmed. See Reddick v. Reddick, 194 Pa. Superior Ct. 257, 166 A.2d 553.
The first question involved in the present appeal is whether the denial of the divorce a mensa et thoro is a bar to a subsequent action by the wife for support. Our answer is in the negative. This question was settled in Commonwealth v. Scholl, 156 Pa. Superior Ct. 136, 39 A.2d 719, wherein President Judge KELLER made the following pertinent statement: "The dismissal of a wife's libel for divorce from bed and board, even if upheld on appeal, is not an adjudication that she is not entitled to maintenance and support from her husband. That is a matter for the court of quarter sessions to decide. The jurisdiction of the court of common pleas ends with the dismissal of the divorce proceedings and the affirmance of its decree".
Appellant contends that the language of President Judge KELLER in the Scholl case was merely obiter dicta. His position is that a wife seeking separate maintenance from her husband is provided with an election of remedies; that she may either institute an action for a divorce a mensa et thoro, or file an information
[ 198 Pa. Super. Page 114]
under the provisions of the support law; and that, having unsuccessfully exercised her option, she may not now pursue the alternate remedy. We are not in accord with this contention. Our consideration of the two proceedings discloses that the issues involved and the degree of proof required are not the same.
In an action for a divorce from bed and board, the burden of proof is equal to that in an action for absolute divorce: Craig v. Craig, 170 Pa. Superior Ct. 530, 85 A.2d 626; Bruno v. Bruno, 185 Pa. Superior Ct. 219, 138 A.2d 301; Sims v. Sims, 188 Pa. Superior Ct. 439, 149 A.2d 528. To support a charge of indignities, the wife must establish conduct on the part of her husband from which an inference of settled hate and estrangement may be deduced: Kramer v. Kramer, 194 Pa. Superior Ct. 538, 168 A.2d 624: Giuffre v. Giuffre, 187 Pa. Superior Ct. 154, 144 A.2d 477. There is no requirement that a wife, suing for divorce from bed and ...