Shaw v. Shaw, 36 Pa. Super. 122

Shaw v. Shaw

36 Pa. Super. 122 | Pa. Super. Ct. | 1908

Opinion by

Henderson, J.,

The questions at issue before the jury in this case involved the charges of (1) desertion, (2) cruel and barbarous treatment and (3) indignities to the person. The jury found for the defendant on the first and for the plaintiff 'on the other two. As there was a trial by jury we are relieved, from the burden of reviewing the evidence with reference to its credibility. The provision for an appeal to a jury.implies .that its verdict shall determine the facts in the case if there be competent evidence: Middleton v. Middleton, 187 Pa.. 612; Fay v. Fay, 27 Pa. Superior Ct. 328. Our only inquiry, is. whether the case should have been submitted to the jury on. the evidence offered by the libelant. In many instances testimony bearing upon the charge of cruel and barbarous .treatment is also relevant under a charge of indignities to the person and such is the case here. The testimony covers the history of the parties from their marriage to the time of the trial and is very voluminous. We have examined it all with care, and are of the opinion that it sustains the action of the court. The plaintiff’s testimony shows acts of physical violence- at different times and a course of conduct which brings it within •the description of cruel and barbarous treatment. There is evidence that the respondent assaulted the plaintiff with a dagger and drove him out of the house; that she threw a valise at him at another time; that she struck him in the face with a *124ring; that she frequently used profane and obscene language; that she, in a number of instances, sent to him offensive postal cards through the mail; that she exhibited a violent and quarrelsome disposition; interfered with him in his business and by her general and continuous course of conduct toward him brought on nervous prostration and inability to carry on his work. The testimony also shows that she endeavored to prevent him from prosecuting his profession as an instructor in music; that she disparaged his ability in the presence of strangers and humiliated him publicly in various ways. . We do not deem it necessary to recite in detail the story of the matrimonial experience of the' parties. The jury has credited the libelant’s story and has found that he has been subjected to cruel and barbarous treatment and to indignities to the person, such as made his condition intolerable and life burdensome. The parties appeared as witnesses at the trial and the court and jury were best able to determine the truth of their respective allegations. The case was fairly submitted to the jury by the learned trial judge and upon a motion for a new trial the evidence was reviewed and the ruling at the trial adhered to. It was contended then, as in this court, by the appellant’s counsel that the cruel and barbarous treatment which would entitle the libelant to a divorce is only that which endangers life and health. Such is the language of the Act of March 13,1815, 6 Sm. L. 286, which applies to an action brought by a wife against a husband for that cause, but the Act of May 8, 1854, P. L. 644, which gives to a husband a right to a divorce for cruel and barbarous treatment, is in different terms. The latter act allows a divorce to a husband where his wife “shall have, by cruel and barbarous treatment, rendered the condition of her husband intolerable or life burdensome.” It was held in Jones v. Jones, 66 Pa. 494, that the act did not limit cruel and barbarous treatment to acts that endanger life alone. The same ruling was made in Barnsdall v. Barnsdall, 171 Pa. 625, and in Fay v. Fay, 27 Pa. Superior Ct. 328. In the latter case it was said “whatever directly tends to show a course of treatment which renders the condition of the libelant intolerable and his life burdensome is admissible in evi*125dence and in determining whether there was cruel and barbarous treatment within the meaning of the statute the whole conduct of the wife toward her husband during the period of the alleged ill-treatment should be considered.” The court was not in error, therefore, in refusing to affirm the ninth, tenth and eleventh points of the defendant. After an examination of all of the evidence we are constrained to hold that the court was not in error in submitting the case to the jury.

The decree is affirmed.