23 Pa. Super. 261 | Pa. Super. Ct. | 1903
Opinion bv
The plaintiff, on February 23, 1900, filed her libel, alleging as the grounds for a divorce a wilful and malicious desertion by her husband during the period of two years and upwards. The respondent filed an answer denying the allegation of the libel, and demanding a jury trial. An issue was framed, under which the question to be determined by the jury trial was : “ Did the said Charles M. Gordon on the fifteenth day of November, A. D. 1897, wilfully, maliciously, and without a reasonable cause, desert the libellant, Phebe B. Gordon, and absent himself from her habitation and continue in said desertion during the space and term of two years and upwards, from the said fifteenth day of November, A. D. 1897 ? ”
After the evidence produced by the plaintiff had been concluded at the trial, the respondent declined to offer any testimony, and under peremptory instructions by the learned judge of the court below a verdict was had in favor of the defendant in the issue.
The evidence which the court below deemed insufficient to support the libel established the following facts :
The parties were legally married on April 21, 1891, and from that date until September, 1897, lived together and cohabited in the relation of husband and wife, in Philadelphia, in which city each of them still continues to reside.
While they thus lived together the relation of the husband and wife had been happy and amicable, but the feeling between the wife and some of the relatives of the husband had not been entirely friendly. The home of the parties was at No. 1502 North Seventeenth street, Philadelphia, but during the summer of 1897 that house was temporarily closed and they lived with a sister of the libellant in a cottage at Atlantic City.
The libellant had the home on Seventeenth street opened and put into condition for the reception of her husband as soon as his condition might permit of his removal. The trained nurse continued to take care of the respondent for about five weeks, during which period his condition steadily improved, and in October there was nothing in his mental or physical condition, if the testimony of the nurse and physicians is to be believed, which could or ought to have interfered with his returning to his wife and home.
He went for a brief period to Spring Lake, N. J., in order to have the benefit of outdoor exercise, refusing to permit his wife to go with him, although she entreated him to do so. The reason which he gave for his refusal was, that he was going to a farmhouse and there would be no room for his wife, whereas in fact, he went to a boarding house where guests were regularly entertained, and there would have been ample accommodation for his wife. The wife sent a most kindly letter to her husband by a mutual friend who was going to Spring Lake, but the defendant not only refused to write in reply, but when the friend questioned him, refused to send a verbal message to the libellant, and intimated that there was some reason of which the wife was aware which justified the treatment to which she was being subjected. The wife herself went to Spring Lake to see him, and he refused to permit her to procure a room in the same house and remain over night.
This was the last that the wife saw of her husband. He wrote to her on the 18th of the same month, saying that because of the return of certain symptoms of his late illness, he coiild not place himself in a position where he would be subjected to anything disquieting and annoying; that his safety and hope of permanent restoration to mental vigor required that he remain where he was, and that for these reasons he would “ drop making any arrangements for the present in the line of our interview of Monday.”
If the testimony of the witnesses at the trial is to be believed, these alleged reasons of the respondent for continued separation from his wife were not founded in fact. This man, to whom quiet and the absence of excitement were so essential, attended a football game at Franklin Field two days after this letter was written. The wife replied to this letter, saying that their home was ready and waiting for the respondent, that she was alone in it, and ready and anxious to do and care for him as she had done all of their married life; and that she could not understand his actions in keeping away from her. The husband’s reply to this wifely communication was not only unkind and without semblance of affection, but if the testimony of the libellant and Emma Nickum, the nurse, is true, his reply contained allegations which were absolutely false.
One year after the last interview between the husband and wife, the former sent the latter a cold, businesslike letter, saying : “ I have now sufficiently recovered my health to justify my considering the subject of our again resuming domestic relations, while I still have occasional recurrences of pains in the head, yet the doctors say that these will steadily diminish in frequency and severity and ultimately entirely pass away, though they admonish me of the need of constant care. I would like to talk with you over the matter of plans for our future living together and wish you would appoint some time and place for this purpose.”
Here is the same pretense of a reason for his prolonged abandonment of his wife, that it was required by the condition of his health, which he had alleged a year earlier, and which his own conduct in the interval and the testimony of the physicians who attended him, clearly indicate to have been without reasonable foundation. The reference to the recurrence of pains in the head and the allegation that the doctors still admonish him of the need of constant care, show the extreme caution of the writer; for he thus kept open behind him a door of retreat in case the wife showed any disposition to accept any proposition which he might subsequently make for the resumption of marital relations. This letter was written November 14, 1898, and a letter which the husband subsequently wrote, shows that he then believed that his wife was living in their old home on Seventeenth street, yet instead of making an effort to see her, he sent her a formal written proposition that they meet for the purpose of talking over plans for living together in the future. The wife did not reply to this letter, and the husband, perhaps encouraged by her silence
The formal, written propositions which the wife received suggesting that the parties resume marital relations were thus permeated with deceit; the wife could not have been other than conscious of the attempted deception. The allegation by the respondent that his condition still required the exercise of constant care, was a warning to the wife that the husband still intended to keep open that avenue of escape from his marital duties, testimony in the case indicating that when the husband wrote the letter of November 14, 1898, he had been a well man and had not seen either of his doctors for many months, and yet he wrote as if he were then in present communication with them. The wife replied to the letter of March 11, 1899, stating in effect that in view of the past conduct of her husband, and the form and substance of his communication, she did not believe his proposition with regard to a resumption of marital relations was made in good faith, and that she could not accept it.
Careful consideration of the evidence has lead us to the conclusion that the whole case, including the good faith of the offer .of the respondent was for the jury. The learned judge of the court below assumed that the defendant had been a vie
The defendant having demanded a jury trial, it was not only his right but that of the libellant, that the jury should pass upon all questions of facts involved in the issue and fairly arising under the evidence.
The judgment is reversed and a venire facias de novo awarded.