172 Pa. Super. 391 | Pa. Super. Ct. | 1953
Opinion by
In the quite recent case of Hunter v. Hunter, 169 Pa. Superior Ct. 498, 83 A. 2d 401, we had occasion to say (pp. 499, 500) : “On a charge of indignities the lower court entered a decree of divorce. In spite of the fact that the master, from a patient analysis of
The master in his report recommending the decree said: “. . . the marriage relationship has been a stormy one almost from its beginning resulting in a separation as early as 1937, another separation in 1947 and a final cleavage in 1949. . . . the marital difficulties became most serious in about the year 1945 and continued thus until the.final parting on October 13, 1949, and it is this period of about four years which is [here] vitally involved.”
The parties were married June 13, 1932, when defendant was 19 years of age and plaintiff 38, or twice the age of defendant. One child, a daughter, was born of the .marriage January 16, 1945; another child, also a daughter, had been adopted November 19, 1943. It is in our opinion highly significant that throughout his testimony plaintiff testified largely from typewritten notes which he began making “As far back as 1945,” the year their child was born, and, as stated by the master, the year in which “the marital difficulties became most serious,” continuing “until the final parting on October 13, 1949.” When asked on cross-examination if he had been preparing evidence against his wife over a period of five years he answered, “No. I didn’t know whether we would have a case but I was going to have a few notes ready in case we did.” He
Not only did he refer to his notes in testifying, but in general he was an extremely cautious, deliberate and, at times, evasive witness. For example, when asked how old defendant was when he married her he said, “A moment of computation and I will answer that.” When asked if he did not think that the difference in their ages may have had something to do with the difference in their opinion as to how the home should be managed in the first year of their marriage, he answered, “No. If your face is dirty, your face is dirty.” He admitted that “on numerous occasions” he called his wife a “moron” and made “slurring remarks” about “her mental ability.”
In Garroway v. Garroway, 163 Pa. Superior Ct. 317, 61 A. 2d 379 (affirmed in 361 Pa. 464, 65 A. 2d 414), we said (p. 320) : “The source of the text of libellant’s testimony also challenges his good faith. . . . he made daily notes of respondent’s conduct, insofar as it suited his purpose. The libellant’s testimony in this ease is based largely on these voluminous notes which he was permitted to read into the record. The inference is inescapable that he . . . had in mind bringing a divorce action and that he started then to prepare his case. It may be assumed that the daily notes which he made do not put a construction on the acts of his wife most favorable to her, and the fact that libellant considered it necessary to make any notes of his wife’s conduct casts doubt on the seriousness of her acts. One ordinarily does not need memoranda to aid him in recalling indignities which made his life burdensome.”
He complained of her drinking too much, or in his own words, “I told her she was not drinking like a gentleman.” We assume the phrase “like a gentleman”
In a bill of particulars plaintiff sets forth numerous alleged indignities occurring between July 19, 1945— when he made the first of his typewritten notes — and September, 1947, when he first brought suit for divorce. Most of them were inconsequential and the action was discontinued December 2, 1947, at the request of defendant. The parties agreed to “make a fresh start,” but their marital difficulties began all over again in February and March of 1948 as a result of plaintiff s- alleged misconduct with a woman who formerly worked in his office and who, at his suggestion, accompanied them on a trip to Florida to look after the children. Defendant may have been unduly suspicious of her husband and the other woman, but the fact that plaintiff left for home — he said in answer to a telephone call in regard to one of a chain of theaters in which he has a one-third interest — a few days after the woman left for home did nothing to
In July of that year when defendant was getting the children ready for a trip to Pittsburgh to do some shopping, an altercation arose during which plaintiff says defendant threw the automobile keys at him, striking him in the eye. The master found that “whereupon plaintiff took defendant by the shoulders and shook her without striking her,” but could not “accept as verity” the testimony of Olive Patton; She testified that she and three other people were in the cellar cleaning when her little girl came downstairs and said, “ 'Mother come quick they are upstairs fighting.’ ” She testified further: “. . . they were standing up and they were fighting. Finally Mr. Blatt got the best of Mrs. Blatt and she fell to the floor and Mr. Blatt got on top of her and was holding her down . . . He was pounding her. Finally he left her up.” The master said he could not accept her testimony that “plaintiff had defendant on the floor [and] was on top of her beating her with his fists.” With all due respect to the master, we are at a loss to understand why he could not accept the testimony of Mrs. Patton as to the use by plaintiff of his fists in the light of his admission that on the last night they spent together he hit defendant on the jaw with his fist, with the avowed purpose of “knocking her out.” Also in his report the master said: “In a few instances the parties flatly contradict each other but in most instances defendant has not denied the occurrence nor her part in it.” In our opinion her frankness is commendable when compared
Defendant testified that on one occasion when she had the baby in her arms plaintiff struck her on the side of her head, fracturing her left eardrum. He says he only slapped her, but admits she had to have medical attention for the injury to her ear. As an example of his evasiveness, when asked if his wife had ever had ear trouble before, he replied she “has gone to a doctor very frequently in her married life. Q. But I am asking as to her ear trouble. A. I don’t know what she has gone for. Q. But you don’t have any personal knowledge of her going for ear trouble do you? A. There were dozens of times she could have gone for that purpose.”
Of the quarrel in the early morning hours of October 13 which led to the final separation, we said in Commonwealth ex rel. Blatt v. Blatt, 168 Pa. Superior Ct. 427, 429, 79 A. 2d 126, a habeas corpus proceeding brought by plaintiff against defendant to deter
In his opinion overruling defendant’s exceptions to the master’s report the learned president judge said, with reference to the dastardly and cowardly blow: “. . . his testimony is that . . . on . . . the night of the culmination of their difficulties, he knocked her out because he was obliged to do so. . . . Perhaps to the extent that plaintiff used force he was at fault but bearing in mind the precise circumstances of each instance we cannot say that they make much if any difference.” They may not “make much if any difference” to the learned court below, bxit to this Court they do. In our opinion the knockout blow demonstrates beyond any doubt that plaintiff was not an innocent spouse.
As a witness he was arrogant, overbearing and domineering. Upon cross-examination as to a trifling
The learned court below in concluding that plaintiff is an innocent and injured spouse said: “In the instant case we do not mean to be understood as viewing this plaintiff without fault but this record does show in the matters he complains of he is largely free from fault as well as provocation.”
In the beginning we said “facts established principally by plaintiff’s own testimony . . . reveal an injured but not an innocent husband”: Hunter v. Hunter, supra, p. 500. He therefore is not entitled to a divorce. Cf. Ritrovato v. Ritrovato, 167 Pa. Superior Ct. 111, 74 A. 2d 504; Benny v. Benny, 167 Pa. Superior Ct. 227, 74 A. 2d 782; Thornton v. Thornton, 168 Pa. Superior Ct. 391, 77 A. 2d 691.
Decree reversed and complaint dismissed.