56 Pa. Super. 338 | Pa. Super. Ct. | 1914
Opinion by
At the time (July, 1910) the libelant and the respondent separated they were living in a house belonging to the respondent in the city of Brooklyn, New York. He testified that he was “practically forced out of the house,” but, being asked what he meant by that expression, he said: “I mean my life was made so miserable for me that I had to get out of the house at that time, and she asked me for the keys and I got out — gave her the keys of the house and got out of the house.” Being asked to state more explicitly what he meant by miserable treatment, he said: “Well, being found fault with, everything I did, and not being a companion for me, and not treating me as a wife should. . . . Well, she continually found fault over every earthly thing I did, and on account of my snoring she put me up in the third floor, because I woke my daughter up snoring. She had the back room on the second floor, and I was in the front room, and she complained about my snoring, and she put me up in the third story. She owned the house. Every earthly thing I did she found fault with. After my daughter was born her whole life was practically in the daughter. She was all she seemed to care for.” It is too plain for argument that this testimony is insufficient to support a finding that there
As to what occurred in September, 1910, when he visited her, we quote from his testimony: “I proposed to come back if she would treat me as a wife should a husband— treat me as a husband in the full sense of the word. Q. What did she say to that? A. She declined — she said no — said a couple of words — that’s all. I went back and she said the daughter was sick and she had to go upstairs to the daughter. Q. You then left the house? A. Left the house, yes, sir.” The full meaning of this conditional proposal to return to her house is explained by other portions of his testimony, in which he stated that they had not had sexual intercourse for fifteen years, leaving it to be inferred that this was due. to her refusal. The evident purport of his offer was that he would return if she would agree to change her course in that respect, and generally would agree to behave toward him as a wife should. Taking this testimony as a whole, it does not show an absolute refusal on the part of the respondent to permit the libelant, to again take up his abode in her house. The most that can be said of it is that it shows a refusal on her part to agree to the terms of reconciliation he proposed. When it is remembered that it was he, not she, who had withdrawn from their common habitation, it becomes quite clear that her refusal to accede to the terms upon which he proposed to return, whether justifiable or not, did not in and of itself give the libelant a cause for divorce within the true intent and meaning of the clause of the act of March 13, 1815, P. L. 286, relative to “willful and malicious desertion and absence from the habitation of the other.”
The remaining testimony of the libelant to be noticed, is to the effect that in October, 1910, he was living in a very nice house in Bensonhurst, a suburb of Brooklyn, and that he wrote to his wife a letter, of which he produced a letterpress copy at the hearing before the master, asking her and.
While the Act of June 8, 1911, P. L. 720, makes the libelant a fully competent witness to prove the fact of
The decree is affirmed and the libel is dismissed at the costs of the libelant.