McKrell v. McKrell

• Decision Date: 21 May 1945
• Parties: McKrell v. McKrell, Appellant
• Court: Pennsylvania Supreme Court

42 A.2d 609

352 Pa. 173

McKrell v. McKrell, Appellant

Supreme Court of Pennsylvania

May 21, 1945

Argued March 21, 1945

Appeal, No. 26, March T., 1945, from decree of Superior Court, April T., 1944, No. 144, reversing decree of C.P Allegheny Co., April T., 1943, No. 1012, in case of Harvey H McKrell v. Frances Arline McKrell. Decree reversed.

Same case in Superior Court: 155 Pa.Super. 297.

Divorce proceeding. Before SMITH, J., without a jury.

Decree entered dismissing libel. Libellant appealed to the Superior Court which reversed the decree of the court below. Appeal by respondent to Supreme Court allowed.

The decree of the Superior Court is reversed. The order of the court of common pleas dismissing the libel is reinstated and so reinstated, is affirmed. Costs to be paid by appellee.

W. T. Corbett, for appellant.

Ellsworth Jordan, with him James C. Tallant, for appellee.

Before MAXEY, C.J., DREW, LINN, STERN, PATTERSON and JONES, JJ.

OPINION

MR. JUSTICE PATTERSON

This is an action for a divorce a vinculo matrimonii on the ground of indignities to the person by Harvey H. McKrell, appellee, against Frances Arline McKrell, appellant. The case was tried before a judge without a jury and the libel was dismissed. On appeal to the Superior Court the order was reversed and the record returned with a direction to enter a decree granting an absolute divorce. This Court allowed an appeal.

The parties were married November 19, 1925, at Wellsburg, West Virginia. Following the marriage they lived at Avalon, Pennsylvania. McKrell, then a store manager for the Atlantic and Pacific Tea Company, later attended and was graduated from a chiropractic college and a school of naturopathy. He was subsequently licensed by the Commonwealth of Pennsylvania as a naturopath and opened an office in his residence. Three children, all of whom are living, were born of the marriage. No differences of a serious nature were experienced, and the parties to this litigation, with their three children, lived a normal happy life for seventeen years prior to June, 1941. Appellee prospered and family relations were harmonious. It was at this time that he secured the services of one Mrs. Eva McAnulty to assist him at the office. She was young and attractive, and studied at the Universal College of Chiropractics at Oakland. She acted as secretary and stenographer, aided in the adjustment of patients, and made laboratory tests. Immediately after she became his assistant appellee began to remain at his office until twelve and twelve-thirty in the morning. Rarely, if ever, was he at home with his family, putatively because both he and the assistant worked continuously, not only in the practice but also in the study of their profession. Appellant wife protested this course of conduct. After having been informed that they had been seen together in public late in the evening, and having seen them upon one occasion in front of a theatre, she began to doubt the the truth of his explanation. McKrell never manifested any intention of discontinuing the apparent close association with Mrs. McAnulty. As a result of the tension thus created appellant became troubled and suspicious of his infidelity. She sought the aid of his sister in restoring their previous happy family life. On January 17, 1942, Dr. McKrell, without any explanation to appellant and without having provided for the maintenance and support of Mrs. McKrell and the children, left the family home and has never returned. Later he sent her $25 a week for the maintenance of herself and the three children. He has never attempted, directly or indirectly, to effect a reconciliation. ^[1] One year later, in January, 1943, he filed this libel in divorce.

The course of conduct charged by appellee against appellant is as follows: Prior to June, 1941, appellant was continually nagging; ^[2] she made no effort to raise herself to the social standard which he was seeking to acquire; ^[3] and she failed to conduct herself properly in the presence of patients. ^[4] After June, 1941, when he secured Mrs. McAnulty as his assistant, appellant became jealous and suspicious regarding their true relationship. Mutual professional interests and an increased clientele required that they work together practically every night, and that they attend professional meetings. They returned home together and upon several occasions secured the use of a taxicab rather than walk. Their association was purely for business purposes and his habit of walking home with her every evening was a matter of courtesy, since she lived only a block and a half from the McKrell home. Appellant refused to believe his explanations and on one occasion accused him of being a "whoremaster" and a "dirty lowdown son of a bitch." Once she telephoned the assistant and called her a "hussy" and a "little whore", and upon another occasion came to the doctor's office and left a note in her typewriter, warning her to stay away from Dr. McKrell. ^[5] This suspicion and distrust continued to increase. On June 22, 1942, upon returning home late at night from a fraternity initiation appellee found the bedroom door locked and he was denied admittance to the room. Subsequent thereto accusations became more frequent. Appellant attempted to prejudice the children against their father, and in their presence accused him of indecency and improper conduct with Mrs. McAnulty. As a result of this conduct, appellee contends that his professional standing and health have been affected.

Appellant, Mrs. McKrell, denied that she interfered with her husband's professional practice and that she was unreasonably jealous. She was a good housekeeper and mother, and prior to 1941 was happy and contented. Before Mrs. McAnulty became his assistant appellee rarely, if ever, came home late at night. ^[6] She admits that as a result of her husband's aforesaid association with Mrs. McAnulty she became suspicious and made accusations intimating infidelity, but denied the same were ever made in the presence of the children or any person other than her husband. Prior to June, 1941, she regularly met appellee in the city on Thursday evenings and they had dinner and enjoyed a movie or a show. After that date this routine ceased. She, however, continued to spend Thursday evenings in town. Upon one occasion she saw appellee and his assistant in front of the Penn Theatre. Several witnesses testified they had seen the appellee and Mrs. McAnulty going into the theatre together. They had been seen together at other places. One, Hazel Wilkie, positively identified them as the couple she had seen "with their arms around each other's waists" on Euclid Avenue near Mrs. McAnulty's home. ^[7] Mrs. McKrell admitted calling the assistant on the telephone and telling her to stay away from her husband and that she wrote the note above referred to. The incident of the locked bedroom door was admitted. Appellant explained, however, that she was in great need of rest and, to prevent being disturbed by appellee's habitual arrival at a very late hour, locked the door. Although the door was locked only upon that one occasion appellee thereafter never expressed any desire to be in the room. Admitting that she had believed rumors regarding the impropriety of appellee's conduct and his infidelity, she testified at the trial that she did not then believe these rumors were true. She also desired a reconciliation for, despite the circumstances, she still regarded her husband with affection. ^[8] After having seen and heard the parties and their witnesses, the hearing judge entered a decree dismissing the libel.

The consideration which appellate courts are required to give to the conclusion of a hearing judge has been ably stated by Mr. Justice LINN in Wick v. Wick, 352 Pa. 25: "In determining which of the oral evidence to accept and which to reject, we lack the advantage possessed by the trial judge who, for several days, had the parties and witnesses before him, with ample opportunity to observe them during the trial. The findings of fact made by him have not the same effect on appeal as the verdict of a jury: Esenwein v. Esenwein, 312 Pa. 77, pages 80 and 81, 167 A. 350. Presumably, a trial judge's opportunity to observe the parties and witnesses during the trial, became the basis of a rule that 'when witnesses who are competent and equally interested, flatly contradict each other, the conclusion of the judge who heard them, as to which is to be believed, is not to be lightly disturbed.' Krug v. Krug, 22 Pa.Super. 572, 573; Koontz v. Koontz, 97 Pa.Super. 70; Dearth v. Dearth, 141 Pa.Super. 344, 15 A.2d 37. In accord with that rule, we have at times resolved doubt in dealing with conflicting testimony, by relying on expressed or implied conclusions of the trial judge."

"Indignities may consist of vulgarity unmerited reproach, habitual contumely, studied neglect, intentional incivility, manifest disdain, abusive language, malignant ridicule, and every other plain manifestation of settled hate and estrangement: Evans v. Evans, 152 Pa.Super. 257, 31 A.2d 590; Wittmer v. Wittmer, 151 Pa.Super. 362, 30 A.2d 174; Viney v. Viney, 151 Pa.Super. 86, 29 A.2d 437. The essential feature of the offense of indignities to the person is that it must consist of a course of conduct or continued treatment which renders the condition of the innocent party intolerable and his or her life burdensome: Esenwein v. Esenwein, 312 Pa. 77, 167 A. 350; Davidsen v. Davidsen, 127 Pa.Super. 138, 191 A. 619": Martin v. Martin, 154 Pa.Super. 313, 317. What is meant by such indignities is left undefined in the law, and depends largely upon the circumstances of each case; they must consist of such a course of conduct as is humiliating, degrading and...