91 Pa. Super. 354 | Pa. Super. Ct. | 1927
Argued March 18, 1927. The opinion filed by the president judge of the court below, which will appear in the report of this case, clearly indicates that the court exercised its independent judgment, without giving undue weight to the findings of the master, in passing upon the questions arising under the evidence presented. We have carefully considered the evidence and are convinced that the court below arrived at the correct conclusion.
The libellant is a native of Pennsylvania and has therein resided during his entire life. He was married to the respondent in 1915, in the State of New Jersey, but very shortly thereafter they established a home in the City of Philadelphia and the evidence conclusively established that they had continuously resided in that city until August 5, 1925, when the appellee, because of the alleged misconduct of the respondent, left the home, in Philadelphia, where he and his wife had resided, with the father and mother of the wife, and went to the Ben Franklin Hotel, where he remained a few *362
days and then upon the invitation of a friend who was a member of the company by which appellee was employed, went to live at the house of that friend at Langhorne, Bucks County, Pennsylvania. The appellee had on August 6, 1925, sworn to the libel in this case, which, however, was not filed by his attorney until December 1, 1925. When he thus swore to the libel he was staying at the Ben Franklin Hotel, in Philadelphia, but when the libel was filed he was staying at the house of his friend in Langhorne. During the time that he was thus living at the house of his friend in Bucks County there was no change in his business relations with the company by which he was employed in the City of Philadelphia. He testified that it never had been his intention to establish a domicile in Bucks County, and abandon his domicile in Philadelphia. The friend with whom he was temporarily living at Langhorne really had a residence in Philadelphia, which he considered his domicile. It is contended on behalf of the appellant, however, that the libellant was not a citizen of Philadelphia County at the time the libel was filed. We are of opinion that this contention is not well founded. The evidence establishes beyond all question that the defendant was domiciled in Philadelphia at the time of the discovery of his wife's infidelity, which discovery caused him to separate from his wife and, as the father and mother of the latter were living in the same house with them, it became necessary for him to leave that house. He first went to a hotel and then accepted the invitation of his friend to live with him at Langhorne. There was nothing in the evidence which would warrant a finding that when the libellant went to stay with his friend at Langhorne, in Bucks County, he had the intention of making that place his permanent home, with domiciliary intent. Having been domiciled in Philadelphia that domicile must be presumed to continue until another sole domicile has *363
been acquired by actual residence, coupled with the intention of abandoning the domicile of origin. This change must be animo et facto and the burden of proof is on the party who asserts the change: Price v. Price,
There can be no profit in detailing the circumstances, clearly established by the evidence, which must lead the guarded discretion of any reasonable and just person to the conclusion of the guilt of the respondent. It is impossible to assign any innocent motive for such a meeting as that of the respondent and Richardson at the West Philadelphia station of the Pennsylvania Railroad and their proceeding in the automobile of Richardson to the Green Hill Farms Hotel, where Richardson registered himself and the respondent as man and wife, under an assumed name, whereupon there was assigned to them a bedroom to which they repaired, and there remained for a considerable period. When the libellant appeared upon the scene, he called to the room by telephone and, being answered by Richardson, libellant asked him to come down-stairs. When Richardson came down he denied that he knew where the respondent was. The respondent knowing that libellant had called Richardson, left the room and instead of going down in the elevator walked down the stairway and went into a small reception room. She admitted that she had thus attempted to avoid being seen by her husband. The respondent believed that her husband had gone to Boston, while Richardson had told his wife that he was going to *364 Wilmington on business and would not be home that night. The testimony with regard to the condition of one of the beds in the room, taken in connection with all the other facts in the case clearly establishes the guilt of the respondent. The assignments of error are dismissed.
The decree is affirmed.
