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Jоhn notarial acknowledgment executed his wrongfully to an 3153 Unruh alleged mortgage covering Avenue, mort- in no such the sum of Philadelphia, $1000, mort- signatures was created and that to the gagе ob- John who gage forged by thereby fraudulently tained from William. There was no pleading $1000 relation to gone reliance on what before with did mortgages. the other two William not testify that false notarizations on the mort- upon he relied first two advancing in later He testified gages $1000.' that he relied notarizations signatures, of these documents advancing recordings $3500 false or inaccurate obviously an statement. $2500, and did not the burden sustain it. He had are reversed the record is The orders remanded judgment enter direction defendant case. each Aрpellant, v. Zimmerman.
Zimmerman,
¿7 December Argued 1961. Before Wright, Ervin, and Flood, JJ. Woodside, Watkins, Montgomery, J., absent). P. (Rhodes,
Richard A. with him & Mac- Brown, Swope Brown, appellant. for Phail, ap- him H. J. Francis
John with Bream, Yalce, pellee. by
Opinion J., 12, 1962: Floоd, action Mrs. Zimmerman for divorce by In this indig- adultery the and upon grounds
bed and board both the master and the nities to person, complaint allegations unproved found her and condonеd, If it there was any adultery dismissed. is before us whether question substantial This indignities. charge has sustained the ref- the defendant’s actions with upon whether depends with whom he to woman secretary, his erence constituted adultery, to have committed alleged plaintiff’s condi- to make of action calculated course such Under her life burdensome. tion intolerable even act of single adultery, of a circumstances, course is insufficient unless a one such act, than more in- Here the evidence is is shown. conduct of improper im- or a course adultery either prove to sufficient to indignities. as to amount such conduct proper improper con- conduct The evidence of defendant’s says chiefly on sists of two incidents. The wife inside him his hand she came with 4, 1958, secretary’s playing witness, with dress, her, sitting him Mrs. testified that she saw Knessel, secretary, feeling couch beside her breasts. fix incident Knessel did not the date оf this says February, 1959. she told the about it in might shocking While both well be to incidents parties fully wife’s clothed sensibilities, regard both as the wife herself said cases, and, possi- be the incident which she it wouldn’t tеstified, position ble to commit in which saw them. might if
This be sufficient evidence, believed, *3 evidence show libidinous but there was no inclination, secretary seen that Mr. Zimmerman and ever were except places. public tоgether The in the office or in par- apartment in husband’s office which the just other. He ties lived across the hall from each were impor- to be a man whose work was the most sеemed thing he tant in his life. There little evidence that is away very long except ever from his wife when he was apartment in the hall his office. While both was across large nor and office in a no one motel, testified, any testimony, defendant there hint in the that the together secretary bedroom. were ever seen and his con- No sufficient to show course of adulterous to be found in the evidence. duct is complains also insisted while she secretary July discharged, that the her on be 1958, 4, comply to How- refused with her demand. husband re- for nine months after that date ever, job. Mrs. Zimmerman and her husband mained on April. together husband and wife until the next lived period they together During went on vacations Florida. It hard to and to see the tes- Hawаii timony really that this humiliated Zimmerman indignity According her otherwise an to her. testimony, press own she continued to matter, periods long nothing for she she said about it. While gave Feb- said she him ultimatum it in аn about specifically ruary, they before went she to Florida, during any stated that did not mention it parties extended Flor- vacations took Hawaii July ida between when the incident occurred and apartment. husband’s when she left her husband’s Her discharge request denial that she made for the to us much seems more credible.
Except discharge alleged the sec- fаilure to retary, her of conduct is evidence of a course testimony committed that her husband told her he had having this made lots times. He denied proof to statement and in of the failure of the view accept any adultery, easy wife’s show it is point. testimony below on this as the court Moreover, points made she testified that this statement was out, July before 1958 and thеrefore several months after February conversa- told 1959. He also her the same says, that he sexual relations with tion, secretary. questions suggests which to us the
This same Judge “If had been оut- did to it Sheely: raged demand- and had then at what she saw Moyers sus- now had worst ed that Miss leave, *4 delayed picions Feb- have until would she confirmed, lay ruary Miss her ultimatum down that or later Moyers And after incident, leave? if, must probation far as more or less so was the defendant likely Moyers would he have been concerned, was Miss bragging man- and in such a confession, a tо make such ner?” agree and the court below that the master
We plaintiff. credibility against the balance secretary any both denied and the husband immoral 30 testi- incidents two denied the specifically
conduct conduct, in his admitted some vulgarity fied to. He like- secretary more. The but denied firmly anything as thighs of her “grabbing” wise testified to there. of policy” this was “a sort aрparently passed, never testified that he specifically The husband had. While or told his wife that he committed her husband and Zimmerman testified that not and that it would sorry said they denied such statеments. any both happen again, they reason the real with the court below that agree We Zim- Mr. financial. probably for the break request $1,000 to lend merman refused his wife’s angry and son-in-lаw. She became their daughter not and did apartment left her husband’s later that day him ask complained also that she had to return. She ad- although at that money day every period, her annual well and supported very mitted that he amounted to expenditures $39,000. wheth
A dispute triggered financial the separation, rift. or for the deeper er not there were othеr causes or tes A careful Adultery proved. reading failure impression leaves a clear timony quan of such falls far short proof, evidence vulgarity, show continuous quality required tity disdаin, studied reproach, contumely, neglect, incivility, manifestation settled or ridicule other abuse, prop as is to lead estrangement necessary or such hate rendered the defendant has to the conclusion erly intoler life burdensome her condition plaintiff’s Pa. Superior v. 194 Ct. 169 Donlan, : Donlan able The burden of in an action 121 (1961). 2d A. bed and board on the ground indig for divorce an action for di absolute the same nities is Superior Ct. Reddick vorce: A. (1961). 2d *5 In the Reddiclc ease, Judge Weight observed when the lower has complaint dismissed a in an court аction for divorce from bed and this court is not board, readily inclined to interfere with the result: Reddick Superior Ct. 166 A. 2d 553, 554 (1961). Judge considered carefully Sheely, and painstaking plaintiff concluded that opinion, had not sustained her burden of proving indignities. Our independent of study leads to the testimony us same conclusion.
The plaintiff in her statement of question in- volved in this appeal, summarizes the conduct of the plaintiff upon which she relies to indignities. establish The question reads: “Did the conduct of Defendant over the who, protests of keep- Plaintiff, insisted ing his employment an area contiguous to the living quarters of the Plaintiff and the Defendant, woman whom he had improper towards manifested re- and admitted lations, constitute adultery, indignities person Avithin the meaning Divorce Code of Pennsylvania?”
If the facts as to defendant’s conduct estab- lished as stated, might prevail. However, neither nor adultery the husband’s admission of has been prоved by the credible evidence. The , “improper manifestation of relations” consisted of two isolated instances immoral conduct falling short if the Avife’s adultery, witnesses are believed, consist more than nothing if vulgarity the Tiusband’s witnesses are credited. We find, did the master and below, the balance of on the credibility , controverted issues rests the husband and his Avit- plaintiff’s nesses and that protest of the continued employment was not made at the time of the incident of nor at 4, 1958, ány intervening until before the just time after her left, hus- refused the $1,000 band to lend in April, to the Mapes, *6 estab- do not proofs to conclude that
We are forced consti- which of the defendant part conduct on lish person. indignities tutes affirmed. Order by J. : Opinion
Concurring Wright, con impels A of this record reading realistic im of husbаnd-appellee guilty clusion there conduct with his and that proper secretary, hus wife-appellant of position merit ad or a new band should either new get in I reluctancе to my do not dissent because dress. of the lower court with the determination terfere Red a divorce from bed board. Cf. proceeding for A. 2d Superior v. 194 Pa. Ct. dick concurring opiniоn point purpose this 553. decree of our affirmance out that preju does in the instant pleas proceeding common wife-appellant institute an ac the right dice quarter court of sessions. See support tion Superior v. Ct. Scholl, Commonwealth 719. A. 2d Building Corporation,
Greller Hortter Appellant.