54 Pa. Super. 304 | Pa. Super. Ct. | 1913
Opinion by
The decree of divorce entered by the learned court below was a mensa et thoro with an order for the payment of permanent alimony at the rate of $5.00 per week. The averment of the libel which grounded the jurisdiction of the court to grant such decree was “from the date of her marriage as aforesaid until the 16th day of July, 1911, the said libelant lived and cohabited with the respondent as his wife, but that the said respondent at divers times before said last mentioned date and on said date did assault your said petitioner and did offer such indignities to her person as to render her condition intolerable and her life burdensome, and thereby forced her to withdraw from his house and family.” It is pointed out by Chief Justice Tilghman in Klingenberger v. Klingenberger, 6 S. & R. 187, that under the law as it existed prior to the act of March 13, 1815, 6 Sm. Laws 286, an averment similar to the one quoted from the libel in this case would have supported no other decree but one a mensa et thoro. By the act stated such a course of treatment as
Whilst the testimony in the present case is not voluminous, we think it was sufficient, if believed, to warrant the entry of the decree complained of. The obligations of the marriage state are many, and their faithful discharge by one party is often rendered extremely difficult, if not well-nigh impossible, under conditions for which oiir courts, as the law now exists, are not permitted to afford any relief. But it is not one of these obligations on the part of a wife that she should be compelled to endure physical assaults from her husband so that her face and person would become the witnesses of his unlawful violence. In the present case the respondent was a resident of the county and was duly served with the process of the courts. Although he was represented by counsel at the hearing before the examiner, he did not see fit to avail himself of his right to take the witness stand and deny in any respect the testimony offered by his wife in support of the averment of her libel. Her own testimony, if believed, even though it were in no way corroborated, is legally sufficient to establish the facts she avers: Flattery v. Flattery, 88 Pa. 27; Baker v. Baker, 195 Pa. 407; Krug v. Krug, 22 Pa. Superior Ct. 572; Reed v. Reed, 30 Pa. Superior Ct. 229. In the present case there was corroborating evidence of some of the material facts by a disinterested witness. In the absence of any denial by the husband, we think the examiner and the learned
In her libel the petitioner, after her averment of facts, prayed that she might be divorced "from the marriage bond aforesaid as if she had never been married. . . . And further prays that a decree may be entered allowing to her such alimony as the said William Lewis Crawford’s circumstances will admit of,” etc. It is true that the first part of her prayer as quoted would indicate that she sought an absolute divorce, but it is just as apparent from the latter portion that she sought a decree of divorce with alimony, or, in other words, a decree a mensa et thoro. Having established the facts averred in her petition, the jurisdiction of the court to grant either kind of a decree is clear under the statutes quoted. The fact that, through the inadvertence of counsel who drew the petition, she asked for a decree that could not be granted as prayed for is no reason why she was not entitled to the decree allowed by the statute. Having established by proof the cause of action set forth in the libel, of which the respondent had due notice, it does not lie in his mouth to say that the court could consider only the first part of her prayer and therefore could make no other decree except one for an absolute divorce to which the payment of alimony would not be an incident. Besides proof was offered by libelant, as part of her case in chief, that respondent was enjoying a professional income of $2,000 a year. This was notice to him that alimony was sought. He made no effort to gainsay this evidence and the order of the court was well within the statutory limit.
Having had his day in court, no legal right of his had been violated by the entry of the decree here complained of because such decree is warranted by the statute upon proof of the facts averred in the libel. The libel therefore as filed would support the decree entered. ■ But even if it were necessary to amend it in respect only of the prayer, it was clearly within the power of the court to allow such an amendment and that was done.
Decree affirmed.
