Robinson v. Robinson

133 A.2d 259, 183 Pa. Super. 574, 1957 Pa. Super. LEXIS 394

• Court: Superior Court of Pennsylvania
• Decided: June 11, 1957
• Docket: Appeal, 115
• Status: Published

Opinions

Opinion by

Ervin, J.,

This is an appeal from a decree granting a divorce a.v.m. to the plaintiff on the ground of indignities to the person. The parties were married on June 29, 1954 and the divorce action was filed on December 27, 1954. The grounds alleged were indignities to the person and cruel and barbarous treatment. Four hearings were held before the master, who recommended a decree of divorce on both grounds. Exceptions were filed by the defendant, but the court below entered a decree of divorce on the ground of indignities to the person.

The master had the advantage of seeing and hearing the parties and their witnesses and observing their appearance and demeanor while testifying whereas we are confined to the printed record. The demeanor of witnesses is the very touchstone of credibility and may well be the deciding factor in appraising trustworthiness. Megoulas v. Megoulas, 166 Pa. Superior Ct. 510, 512, 72 A. 2d 598.

The master concluded that the weight of the credible testimony rested with the plaintiff. While we are not bound by his findings, his conclusion upon the credibility of witnesses must be given the fullest consideration and should not be lightly disregarded. Brown v. Brown, 163 Pa. Superior Ct. 490, 63 A. 2d 130. After a careful and independent review of the record, we conclude that the decree should be affirmed.

On June 29, 1954, the date of the marriage, plaintiff was 73 and the defendant was 45. Defendant’s two prior marriages ended in divorce. Plaintiff’s first wife died on December 6, 1953. The parties became engaged on January 1, 1954. After their marriage on June 29, 1954 the parties took up residence at the home of the plaintiff in Allison Park, Allegheny County, Pennsylvania. In July or August of 1954 the defendant picked up a big skillet and struck a kitchen table and sink, damaging both. In addition, defendant broke a number of dishes. The defendant then left the plaintiff but returned in four or five days. Approximately three weeks later the defendant broke an old-fashioned clock Avhich the plaintiff Avas fond of, together Avith a second clock and more dishes. After the incident the defendant left the plaintiff for four or five days before she returned. Three or four weeks later, the defendant again broke dishes and left the plaintiff. She returned four or five days later. When a 45-year-old defendant breaks the personal property of a 73-year-old plaintiff and leaves him three times, within four months of the date of the marriage, to take care of himself and his home, it is evidence from which an inference of settled hate and estrangement may be found.

On October 4, 1954, while the plaintiff Avas in bed, the defendant threw a butcher knife at him. The knife weighed about one pound and had a nine-inch blade. Fortunately for the plaintiff, she missed. However, not being satisfied Avith her poor marksmanship, she tried again and threw a crockery slop jar at him. Again she missed the mark. While the plaintiff was leaving the house to summon the police, the defendant threAV another object at him.

On October 6 or 7, 1954 the defendant returned to the plaintiff’s home, with her daughter, to get some of her clothes. The defendant, unknown to the plaintiff, took from its hiding place a strong box containing over $30,000.00 and other valuable papers which belonged to plaintiff, and left. When the plaintiff discovered that the strong box was gone, he questioned the defendant. She did not return it and legal proceedings were instituted to effect its recovery..

On October 11 or 12, 1954, the defendant again returned to the plaintiff. One night, while the plaintiff was sleeping in a downstairs bedroom, the defendant fired a revolver out of a kitchen window. The plaintiff managed to take the gun away from her, but a struggle ensued during which the defendant attempted to strike the plaintiff with a broom. The plaintiff took the broom away from her but she grabbed him in the groin. Finally, the defendant, who weighed approximately 225 pounds, fell to the floor. The defendant again left the plaintiff but she returned in December of 1954.

Two days before Christmas, 1954, while at the dinner table, the. defendant threw a fork at the plaintiff. It was 11 5/8 inches long and weighed about one pound. The defendant forced the plaintiff to the floor, tried to bite the plaintiff, then spit at him a dozen times. She then yelled “Murder, murder, murder.” The plaintiff called for the defendant’s daughter. While plaintiff was helping the defendant out. of the house, she attempted to throw her weight against him but fell into a rhododendron bush. The plaintiff ran back into the house, whereupon the defendant broke the front door glass. Shortly thereafter the plaintiff filed this divorce action. None of the incidents above described were provoked by any actions of the plaintiff. The only explanation which the plaintiff could give was that the defendant had been drinking. The defendant made a general denial.

An indignity to the person is an affront to the personality of another, a lack of reverence for the personality of one’s spouse. It consists of various acts, so varied in their nature that the courts have not undertaken to define the offense in more than general terms. But the offense is complete when a continued and persistent course of conduct demonstrates that the love and affection upon which the matrimonial status rests has been permanently replaced by hatred and estrangement. For then, when the foundation has collapsed, the superstructure falls and inevitably the marriage condition becomes intolerable and life is indeed a burden. Trimbur v. Trimbur, 171 Pa. Superior Ct. 541, 546, 91 A. 2d 307.

The assaults and batteries committed by the defendant, coupled with the other acts, constitute indignities to the person. Cruel and barbarous treatment and indignities to the person are separate and distinct grounds for divorce. Eberly v. Eberly, 154 Pa. Superior Ct. 641, 644, 36 A. 2d 729, but treatment in the nature of cruelty may be considered on the issue of indignities. Sharpe v. Sharpe, 177 Pa. Superior Ct. 76, 80, 110 A. 2d 804; Trimbur v. Trimbur, supra.

The defendant objected to the testimony of Dr. Kelly and Dr. Frederick on the ground of privilege. The court below did not consider the testimony of Dr. Frederick. We likewise will honor the defendant’s request and will not consider the testimony of either doctor. The hospital record, which the defendant objected to, was withdrawn from the evidence by the plaintiff and we did not consider it.

Plaintiff was corroborated in some of the details by the police officers. Defendant’s witnesses testified in a general, negative vein, and did not seriously contradict what is clear from the record concerning the behavior of defendant. The plaintiff testified that he “was scared” and that “I am a nervous wreck. Some nights I can’t sleep.” The plaintiff was 28 years older than the defendant. The defendant was a large woman, weighing approximately 225 pounds. It is abundantly clear from the record that the defendant’s unprovoked conduct did have considerable effect upon the plaintiff. A younger man might well have been “scared” by the violent and strange conduct of the defendant and certainly an older man would be affected to a greater extent. Furthermore, the plaintiff most certainly was obliged to look after himself without the aid and assistance of a wife during the many periods when the defendant abandoned the plaintiff. This appears to us as another case where a younger woman marries an older man, not because of any love or affection but merely to obtain his money and property. There is nothing particularly wrong with this endeavor provided the woman makes some contribution to the welfare and happiness of her husband.

We are convinced that the plaintiff is the innocent and injured spouse and has proved his case by a preponderance of clear and satisfactory evidence.

Decree affirmed.