71 Pa. Super. 241 | Pa. Super. Ct. | 1919
Opinion by
There was testimony in the case shown that the libellant when the respondent left him told her “I don’t want you, go!” The wife may have had the fully formal intention to leave and the cause she gives for her leaving may not have justified the act, but if the husband speeded the parting and by his acts indicated that he wished her to go there was a common object in both their minds and, until one or the other destroys the prior status and revokes the consent by making a bona fide offer to resume
If we turn to the charge of the court we have no submission of the subject of consentable separation to the jury although the attention of the court was called to it by a point submitted by the respondent’s counsel which was refused the point being “If the jury find that the libellant had ordered respondent to withdraw from their home, she is not guilty of willful and malicious desertion.” Whether her story was to be believed was for the jury, but she was entitled to instructions to the effect that if her husband ordered her to go or consented to her going
The decree of divorce is reversed with a venire facias de novo.