42 Pa. Super. 226 | Pa. Super. Ct. | 1910
Opinion by
The plaintiff filed in the court below a libel praying for a divorce from the respondent, alleging that she, “by cruel and barbarous treatment and indignities to his person, hath rendered the condition of this libelant intolerable and his life burdensome.” The libel as originally filed alleged, as a further ground for divorce, that the respondent had given herself up to adulterous practices and been guilty of adultery with divers persons in this commonwealth and elsewhere, but the libelant saw fit, by an amendment, to entirely eliminate this charge from the issue. The only question which the court below was called to pass upon, or to be considered upon this appeal, is, did the evidence produced establish that the respondent had by cruel and barbarous treatment and indignities to the person of her husband, the libelant, rendered his condition intolerable, and his life burdensome within the meaning of the Act of June 25, 1895, P. L. 308? The court below deemed the evidence insufficient and dismissed the libel; from which decree the libelant appeals;
That physical violence offered by the respondent to the
The testimony with regard to the incidents hereinbefore referred to includes all of that produced which referred directly to the treatment of this libelant by his wife; the remainder of the testimony referred not directly to the treatment of the libelant by the respondent, but had reference to the manner in which she treated other men. It has been suggested in the argument for the appellant that the latter withdrew from the libel the allegation of adultery on the part of his wife because of his regard for the future of his child, but, that if necessary, the circumstances disclosed by the evidence were sufficient to establish the graver charge. We cannot thus change the issue. The libelant cannot have a decree of divorce upon any ground other than that alleged in his libel. Courts ought never to sever the marriage contract, but where the application is made in sincerity and truth, for the cause in the libel set forth, and no other, and fully sustained by the testimony: Middleton v. Middleton, 187 Pa. 612; Olson v. Olson, 27 Pa. Superior Ct. 128. The cruel and barbarous treatment and indignities to the person, rendering the condition of the husband intolerable or life burdensome, which are by the act of June 25, 1895, made a cause for divorce, relate
The decree is affirmed and the appeal dismissed at cost of the appellant.