Roth v. Roth

15 Pa. Super. 192, 1900 Pa. Super. LEXIS 322

• Court: Superior Court of Pennsylvania
• Decided: October 8, 1900
• Docket: Appeal, No. 203
• Status: Published

Opinion

Opinion by

Rice, P. J.,

The statute authorizes the granting of a divorce, (a) “ when any husband shall have by cruel and barbarous treatment endangered his wife’s life,” or (6) “ offered such indignities to her person as to render her condition intolerable and life burdensome, and thereby force her to withdraw from his house and family.” The defendant’s first five points were intended to draw from the court positive and unqualified instructions that if husband and wife were not occupying the same habitation at the time of the alleged indignities she cannot obtain a divorce for the second cause above specified. This, it seems to us, puts a too literal construction on the words “ thereby force her to withdraw from his house and family.” Mr. Justice Coulter in delivering the opinion of the Supreme Court in Elmes v. Elmes, 9 Pa. 166, said on the subject of indignities to the person of the wife by her husband: “ To render the condition of a wife intolerable, and her life burdensome, it is not necessary that there should be blows, or cruel and barbarous infliction of batteries that endanger her life. There may be without that such indignities to her person as to render her life a burden.” So also it was said in May v. May, 62 Pa. 206: It is true, that such a course of treatment as would render the wife’s condition intolerable and her life burdensome might, in the end, impair her health and shorten her life, but there are indignities to the person which would not seriously endanger her life though they would render it too humiliating and burdensome for her- to bear.” But it is unnecessary in this connection to declare what course of conduct would constitute such indignities to the person of the wife as would render her condition intolerable and life burdensome. The proposition under discussion assumes that even though the wife were subjected to such a course of conduct — such a course of humiliating insults and annoyances, practiced in the various forms which ingenious malice could readily devise — as might, and actually did render her condition intolerable and life burdensome, yet she could not obtain a divorce for this cause, if at the time the indignities were inflicted upon her she and her husband were occupying separate habitations. By the same literal interpretation she could not obtain a divorce if he had no house and family. A case is supposable where the wife living apart from her husband might be subjected to such a course of conduct as has been described in the decided cases, and thereby be forced to refuse to dwell with him. In such a case her refusal to live with him would be justifiable, and in effect and in the contemplation of the statute would be a withdrawal from him. Whether or not the evidence in the present case as to the defendant’s conduct after December 11, 1895, came up to the requirements of the statute as interpreted by the decisions may, perhaps, be questioned. But as none of the assignments of error distinctly raises that question, we neither discuss nor express a decided opinion on it. We hold simply that the fact that a wife was living apart from her husband at the time of the alleged indignities is not per se and under all circumstances a conclusive bar to a divoree for the cause under discussion.

But although there was no reversible error in the answers to the points above referred to we are of opinion that there was error in some of the instructions contained in the general charge. We take the instructions complained of in the sixth, seventh and eighth assignments for illustration.

The facts referred to in the excerpt from the charge embraced in the sixth assignment of error were undoubtedly proper for the jury’s consideration. Their significance, however, depended very much on the defendant’s motive and the effect upon the plaintiff. Upon cross-examination the plaintiff described these occurrences as follows:

“ Q. You say further that he came to your house at different nights and knocked on the door and knocked on the window and thereby annoying you; how often did he come and knock on your door ? A. Indeed, I couldn’t tell how often; he just came about the house at night; he was working in the oil country there, and passing back and forward, and he would stop and call. Q. Did he come and knock at your door over three times ? A. Yes, sir, more than that. Q. Was it over six times ? A. Perhaps not over six; I couldn’t tell you how many times. Q. At these times you didn’t open the door? A. No, sir. Q. And as the door wasn’t opened he went away ? A. He did sometimes come in in daylight. Q. I am asking when he came at night and knocked at the door, what happened ? A. I don’t remember of him coming in. Q. Didn’t you occupy the kitchen ? A. We did. Q. Didn’t he as a fact for a couple of years there, wisely or foolishly, try to get you to go back and live with him ? A. Yes, sir, he wanted me to go back. Q. Didn’t he try to persuade you ? He didn’t even come there and offer to give you a licking? A. I don’t know that his object was to persuade me to go back. Q. At the most it couldn’t have been any more than your imagination what he wanted to do if he got in ? A. I know he was forbidden, and I know he was not wanted, and he knew he was annoying all of us and he has never made the least provision to have the children with him or asked to see them when he comes there. Q. Anyway he made no threats or never offered to strike you ? I am asking tvhen he came there at night if he ever offered to strike you, if he called you names or done anything more than knocking at the door and then if he didn’t go away? A. Yes, sir, he went away. Q. And the most of that was an annoyance to you? A. Yes, it was an annoyance.”

The defendant described them as follows : “ Q. You were in the habit of coming to the house in the night-time after they came to the farm? A. No, sir. There was one occurrence I have forgotten, the occasion my wife has spoken of when I came there; I had gone to Greenville and on my way home I had bought a pony with saddle and bridle, and it occurred to me it would be a nice thing for the boys, and I rode it down to the house; I didn’t get there until after night and I had to rout them up to take charge of the pony. Q. Were you back after-wards? A. Yes, sir, on four or five other occasions I rapped at the door like any neighbor; when no one would admit me I would go and tap on the window to call attention and very often one would talk to me. Q. That was a frequent occurrence? A. No, sir, it was not; it would be five or six times.”

. If he went to his wife’s house merely for the purpose of seeing his children or of inducing his wife to become reconciled to him, his action, however ill-advised, was entitled to a different construction in the determination of the question at issue from what it would justly receive if it proceeded from hatred, revenge and spite, and was resorted to for the purpose, and had the effect, of terrorizing and humiliating her. The mere fact that it “ annoyed and disturbed ” her would not convert this action of the defendant, if innocently intended, of which the jury was to judge, into an indignity to the person of the wife within the true intent and meaning of the divorce laws. Moreover not every indignity to the person, although annoying and disturbing, which falls short of rendering the wife’s condition intolerable and her life burdensome is sufficient to entitle her to a divorce. As we have suggested, the court committed no error in submitting these facts to the jury as part of the defendant’s course of conduct — as circumstances tending to establish the general charge — but we are of opinion that, in declaring what legal effect the jury ought to give to them standing alone, the learned judge went farther than was warranted. Even if the defendant’s action in calling at his wife’s house annoyed her, it was susceptible, under the evidence, of another construction than that which was put upon it in the charge.

The defendant’s act referred to in the ninth assignment of error, if done under the circumstances and in the manner testified to by the plaintiff, was an indignity to her person. But it is well settled that a single indignity of the character of that described in this assignment is not sufficient of itself to entitle the libellant to a divorce. In a case where the divorce was applied for on the ground of indignities to the person, and the proof was that the husband had pulled his wife’s nose “ in rudeness and in anger, in a coarse, vulgar and harsh manner,” the court charged that this was sufficient to entitle her to a divorce. This was held to be error. The Supreme Court said: “ It is not of a single act that the law speaks in the clause under • which this case falls, but of such a course of conduct or continued treatment as renders the wife’s condition intolerable and her life burdensome: ” Richards v. Richards, 37 Pa. 225. The same principle has been recognized in later cases, amongst which may be mentioned May v. May, 62 Pa. 206, Nye’s Appeal, 126 Pa. 341, and Mendenhall v. Mendenhall, 12 Pa. Superior Ct. 290. See also Edmond’s Appeal, 57 Pa. 232, and Hardie v. Hardie, 162 Pa. 227.

In passing on the eighth assignment it is important to notice that on March 11, 1895, the plaintiff filed a libel, which, as amended on December 11, 1895, alleged substantially the same cause for divorce as that alleged in the present libel. Evidence was taken on both sides, and after a full hearing the court refused the divorce and dismissed the libel. Prior to the time of the filing of the .first libel the plaintiff left the defendant and from that time refused to live with him. Before submitting the present case to the jury the court struck out all testimony relating to the conduct of the defendant prior to the date of the amendment of the first libel (December 11, 1895) upon the ground, as stated in the order, that the former decree was a conclusive adjudication of the matters occurring before the date last mentioned. The correctness of this ruling is not now before us, but whether the evidence as to the prior conduct of the defendant was admissible on the trial of present libel or not, we think it clear that the former decree was a conclusive adjudication of the insufficiency of his acts prior to December 11, 1895, to justify a divorce. See 5 Am. & Eng. Ency. of Law (1st ed.), 847. It would also seem that it was impliedly an adjudication that the plaintiff was not legally justified in leaving her husband at the time she did. For it is well settled that separation is not to be tolerated for light causes, and all causes are light which the law does not recognize as ground for the dissolution of the marriage bond: Mendenhall v. Mendenhall, 12 Pa. Superior Ct. 290, and cases there cited. Granting even that the justifiableness of the plaintiff’s leaving and refusal to live with her husband was an open question, which was to be determined upon all the evidence both as to what occurred before the former decree as well as to what occurred afterwards, its determination had an important bearing upon the fact of the defendant’s refusal to support her. It has been held, it is true, that to deprive the wife of food or other necessaries of life is, under some circumstances, an indignity to her person: Mason v. Mason, 131 Pa. 161. But surely it cannot be contended that if she has deserted him without justifiable cause his refusal to support her afterwards, she still persisting in her separation from him, is an indignity to her person which entitles her to a divorce. We need not discuss that proposition, and if it cannot be sustained, as it clearly cannot be, there was error in the instructions complained of in this assignment. The effect of the instructions was that, if the defendant was not prevented by sickness and distress, his refusal to provide his wife and family with food and other necessaries of life after the date of the former decree was an indignity to her person, and if persisted in entitled her to a divorce. This entirely left out of view the undisputed fact that she had withdrawn from him and persisted in her separation against his wish. Under such circumstances his failure to support her in a separate establishment was not such an indignity to her person as, standing alone, entitled her to a divorce. If he had refused to receive her back, thus virtually “turning her out of doors” (Grove’s Appeal, 37 Pa. 443), an entirely different question would be presented.

It is unnecessary to discuss the several assignments of error further in detail. We have passed on the principal questions raised by them, and sufficiently indicated our conclusions.

The decree is reversed and a new trial awarded.