162 Pa. 227 | Pa. | 1894
Opinion by
Plaintiff and defendant are libellant and respondent in a suit by the husband for divorce from the bonds of matrimony. The
The ground for divorce, averred in the libel, is willful and malicious desertion by the wife; she admitted absence from his house and separation ; but that there was willful and malicious desertion, she denied; she further setup the counter averment that her husband, by his cruel and barbarous treatment, had driven her from his home.
The parties were married in August, 1867, and lived together as husband and wife until the 12th of November, 1890, the day of separation. They were childless; both were caterers and cooks, and by their joint industry, during more than twenty years of married life, had accumulated some property, real and personal. The legal title to the real estate was in the husband, though the wife had contributed from her earnings a considerable part of the purchase money. Some time before the separation, disputes and quarrels arose between them; he suspected she was not as strong a prohibitionist as he was, or professed to be ; she suspected his fidelity in the married relation. The suspicions of both were, apparently, groundless; but they were sufficient to arouse a sort of domestic animosity on the part of each towards the other, which culminated in his striking her, and she, smarting under the indignity, left his house. That this was the immediate cause of her leaving is hardty disputed. The learned judge of the court below assumed that this single blow was the only instance of cruel and barbarous treatment; and this, under the law, not being sufficient to justify or excuse her desertion, the plaintiff was entitled to a verdict. If this had been the only question in the case, the instruction was correct. But there is another view of the evidence applicable to the pleadings which the jury had a right to consider. Both agree, she left the house on the 12th of November; she testifies she left “ to go to work; ” although they had a quarrel on that day, and probably the day before, she says she did not intend, by leaving it, to give up her home; that she went back the next day and “ put away her things; ” did not take them away; then went back on the third day, when she found the locks had been changed, and she gained an entrance only by breaking the window. She declares she never had left the house intending to
Such desertion as this is not willful and malicious, even if he struck her but a single blow before she left. If her testimony be believed, his conduct, after she left, indicates an intention to prevent her return. The instruction, that it was not the duty of the husband to persuade the wife to return, was correct; but the jury should also have been told that, if she left the house under the provocation of a blow, and soon after returned, it was his duty to receive her, and that if he, in anticipation of her return, locked the doors against her, he cannot be heard to say that her absence thereafter was willful and malicious desertion.
In Grove’s Appeal, 87 Pa. 443, we held that the wholly inexcusable departure of the wife from her husband’s house did not justify him in refusing to receive her when she returned; that such conduct on his part was a virtual turning her out of doors.
The evidence tending to show cruel and barbarous treatment such as would justify her in leaving the husband, is mainly that
The judgment is reversed, and a venire facias de novo awarded.