53 Pa. Super. 129 | Pa. Super. Ct. | 1913
Opinion by
The libel in this case charged willful and malicious desertion on the part of the respondent, and the latter’s answer set up, as justification for her separation from the libellant, his cruel and barbarous treatment and adultery. The evidence is insufficient to sustain the charge of cruel and barbarous treatment, and, as we view the case, its sufficiency or insufficiency to sustain the charge of adultery need not be decided. The undisputed fact is that the respondent left her husband’s house on October 18, 1907,
It is worthy of notice that the libelant does not allege that, when his wife told him she would leave, he objected or requested her to stay. His conduct since, and his declaration on the witness stand, while not tantamount to express consent to the separation, are entirely consistent with the conclusion that it was not against his wish. This alone would not constitute a defense. But viewing the testimony as a whole, the great preponderance is in favor of the conclusion that, if the libelant did not actually expel his wife from his house, she left by and with his consent and expressed wish. This was sufficient to repel the inference that her separation from him was willful and malicious desertion, and, therefore, to defeat his application for divorce. “Desertion is an actual abandonment of matrimonial cohabitation, with an intent to desert, willfully and maliciously persisted in, without oause, for two years. The guilty intent is manifested
This doctrine was recognized in Ingersoll v. Ingersoll, 49 Pa. 249, and has been recognized in many later cases, amongst which may be mentioned Graham v. Graham, 153 Pa. 450; Middleton v. Middleton, 187 Pa. 612; Hull v. Hull, 14 Pa. Superior Ct. 520; Olson v. Olson, 27 Pa. Superior Ct. 128; King v. King, 36 Pa. Superior Ct. 33; and Kelly v. Kelly, 51 Pa. Superior Ct. 603. In the. last cited case we referred at some length to the other authorities, and need not go over the ground again. Our conclusion is that the court was right in holding that a willful and malicious desertion had not been established, and in dismissing the libel for that reason.
The decree is affirmed at the costs of the appellant.