22 Pa. Super. 572 | Pa. Super. Ct. | 1903
Opinion by
The libel of the appellee alleged that her husband had offered
The testimony in this case was taken in open court and the learned judge before whom the witnesses appeared had an opportunity to observe their manner of testifying, and his findings of fact are entitled to respect. When witnesses who are competent and equally interested flatly contradict -each other, the conclusion of the judge who heard them, as to which is to be believed, is not to be lightly disturbed. If the testimony offered in support of this libel was to be believed, the appellant had forced his wife to submit to sexual embraces in season and out of season, without regard to her physical condition, whether she was sick or well. The wife willingly allowed the husband all reasonable indulgence of his marital rights except
The contention of the appellant that a' divorce ought not to be granted when the testimony of the libellant is not corroborated and is flatly denied by the respondent, is not well founded. The law has made the libellant a competent witness. Whether credible, is a question to be determined by the tribunal which is to pass upon the facts: Flattery v. Flattery, 88 Pa. 27; Baker v. Baker, 195 Pa. 407; English v. English, 19 Pa. Superior Ct. 586. We do not say that a case cannot arise in which the testimony of a libellant might not be so full of contradictions and improbabilities as to be self-discrediting, but that is not this case. The fact that the health of the wife was seriously impaired by a brief cohabitation with this appellant, and that she finally left his house on account of his treatment of her, was a very strong supporting fact to her testimony: Baker v. Baker, supra.
The evidence justified the finding of the court below that the residence of the libellant had been for more than a year prior to the filing of the libel, and still continued to be, in Lackawanna county. The parties were married and dwelt together, in that county, and there is nothing in the evidence which would have