Howe v. Howe

• Decision Date: 22 January 1901
• Docket Number: 205-1900
• Citation: 16 Pa.Super. 193
• Parties: Howe v. Howe
• Court: Pennsylvania Superior Court

16 Pa.Super. 193

Howe v. Howe

No. 205-1900

Superior Court of Pennsylvania

January 22, 1901

Argued December 12, 1900

Appeal by plaintiff, from decree of C.P. No. 1, Phila. Co.-1899, No 71, dismissing exceptions to master's report in divorce in case of Minnie A. Howe v. Everett T. Howe.

Libel for divorce.

The case was referred to Webster Melcher, Esq., as master, who took testimony and filed a report in which he recommended that the libel should be dismissed.

Error assigned was decree dismissing exceptions to master's report.

R. O Moon, for appellant, cited: Mason v. Mason, 131 Pa 161; Oxley v. Oxley, 191 Pa. 474; Baker v Baker, 195 Pa. 407.

No paper-book or appearance for appellee.

Before Rice, P. J., Beaver, Orlady, W. W. Porter and W. D. Porter, JJ.

OPINION

ORLADY, J.

Minnie A. Howe filed a libel which prayed for an absolute divorce from her husband on the ground of adultery, and averred " that the libellant hath wilfully and maliciously deserted her without any reasonable cause, for and during the term and space of two years." The husband was served with the subpoena but he neither appeared nor offered any testimony before the master who was appointed by the court to take testimony, etc.

The master filed a report in which he recommended that the libel be dismissed and the libellant ordered to say the costs including the master's fees and stenographer's charges. The learned court below dismissed the exceptions filed to the master's report and confirmed his findings without any discussion of the evidence, of the conclusions of fact, or of his application of the law to the facts as found by him. This practice is condemned by the Supreme Court in the late cases, McMahen v. McMahen, 186 Pa. 485, 40 A. 795, and Baker v. Baker, 195 Pa. 407, 46 A. 96, Of whatever drudgery the court of original jurisdiction may relieve itself in this class of cases by appointing an examiner, neither it nor we can escape the burden of a careful consideration of the evidence in order to ascertain whether it does in very truth establish the statutory grounds for a divorce: Middleton v. Middleton, 187 Pa. 612, 41 A. 291.

Following the rule laid down in Angier v. Angier, 63 Pa. 450, Middleton v. Middleton, supra, we have carefully examined the testimony taken by the master, and we cannot agree with his findings of fact nor with his application to them of well settled legal principles. The charge of adultery was not pressed, and the testimony adduced referred to the husband's treatment of the wife which, it was claimed, was equivalent to his wilful and malicious desertion of her. The " reasonable cause" which justifies a wife's desertion and abandonment of her husband must be such as would entitle her to a divorce, and that is defined by the statute itself to be such cruel and barbarous treatment as endangers her life, or which offers such indignities to her person as to render her condition intolerable and life burdensome: Eshbach v. Eshbach, 23 Pa. 343; Grove's Appeal, 37 Pa. 443.

The master held that a divorce will not be granted upon the uncontroverted testimony of the libellant alone. In the somewhat similar case of Baker v. Baker, 195 Pa. 407, 46 A. 96, it is held as follows: " The fact that the wife finally left the house on account of the treatment of her husband was a very strong supporting fact of her testimony. But her testimony did not require other supporting evidence. Being entirely uncontradicted and sufficient of itself to justify a decree, it is not proper to flippantly dismiss it from consideration and refuse relief to the party injured." In this case the wife's testimony is abundantly corroborated by her conduct subsequent to her leaving his home, and by the unimpeached testimony of her father, mother and brother. The master concludes that the libellant " failed to prove that the respondent without good cause drove her away, or compelled her to leave or remain away against her consent." There is not an item of evidence tending in the most remote degree to impugn the character of the libellant, and the master's analysis of her testimony is not in accord with the ordinary rules of interpretation. The respondent did not appear at any stage of the proceeding, although he was given every opportunity to cross-examine the witnesses called to testify against him; nor did he offer any evidence in denial of her statements. Three witnesses, in addition to the libellant, support her material statements, and the evidence taken as a whole is convincing beyond a doubt as to the facts stated. The independent acts are so testified to by the several witnesses that it is unreasonable and unwarranted to doubt the truthfulness of the libellant or of her witnesses. The libellant was twenty and the respondent twenty-three years of age at the time of their clandestine marriage, after which they lived with the family of the husband in Scranton, Pa. The libellant testified in substance that the husband was a man who very frequently came home intoxicated and was very abusive in language and actions, which conduct grew constantly worse. Several times he knocked her down and threatened to shoot her if she went home. He locked her in a room and struck her on other occasions prior to March, 1897, at which time he came home beastly drunk. The wife remonstrated with him for his conduct, when he struck her in the face with his fist and knocked her down, swearing violently at her and choking her so as to leave the prints of his fingers on her throat. He had a pistol and said, " God damn you, go home; I do not care, and stay there. If you don't go home, I will shoot you, anyhow." The wife remained up all night, being afraid to go to bed, and the next day she left the home to go to her father's in Philadelphia. She swears positively that she endured his treatment of her as long as she could, and she was absolutely afraid for her life when being with him, and that there was never any cause for his treatment of her except his own ungovernable temper and bad habits; that she treated him kindly and affectionately and did all that she could to make his married life happy.

On her return to her father's in March, the prints of fingers were noticeable on her throat, and were observed by her mother and brother to whom she narrated the cause. She was at that time very nervous and hysterical, owing to which condition sh...