Heilbron v. Heilbron , 158 Pa. 297 ( 1893 )

Opinion by

Mr. Justice Mitchell,

The libel sets out a statutory cause of divorce in general terms, that the respondent had by her conduct rendered the condition of the libellant intolerable and his life burdensome, but then unfortunately proceeds to specify particulars which tend to negative the general averment. “ Thereby,” it charges, he was obliged to expend money for a trip to Europe for her, he was left alone and forced to break up housekeeping, and the fact that she remained away became the scandal and talk of the neighborhood. Her going away was by his consent, even if extorted reluctantly, and if she remained away against his will and request, that tended to prove desertion, not cruel and barbarous treatment. The libel therefore was defective, and if that were all that was in the case, it was rightly dismissed.

But an examination of the evidence forces us to differ entirely from the view taken by the learned court below. Many outbursts of temper on the part of respondent, not confined to bad language and threats, but accompanied by acts of great violence, are testified to by several witnesses, and are scarcely denied by the respondent herself. Thus she admits on cross-examination that she broke the glass door in his store, and interfered with his customers, that she broke dishes and threw them down stairs, threw hot coffee on the girl, and on two occasions when her stepsons complained of the dinner she brought in slop and threw it on the table. The testimony of the other witnesses enlarges this list considerably by matters not necessary to detail. Her own admissions give them - more force than possibly they might have of themselves. The weight of the evidence shows a course of conduct well calculated to make any man’s life burdensome. The libellant’s conduct was not nice or liberal, but we see no ground for saying that the respondent was the injured party. On the contrary, a case for divorce on the general ground of conduct rendering libellant’s condition intolerable and his life burdensome, is made out.

The libel as already said was formally defective, but the defect was in setting out too much, not too little. A good cause of action is averred in the terms of the statute, and the evidence sustains it. The particulars which make the libel inconsistent and therefore demurrable, may be struck out as surplusage without in any way changing the cause of action, or the relevancy of the evidence to it. We are of opinion that an amendment in that respect should be allowed, and thereupon a divorce decreed.

The decree made was also erroneous in another respect which must have been an oversight of the learned court below. It ordered alimony to be paid at the rate of six dollars a week “ until the further order of the court.” For this there was no warrant. The respondent’s petition was for alimony pendente lite, and the order of the court should have been limited to the pendency of the suit. With the decree dismissing the libel the order for alimony should have terminated.

The existence of an order of the quarter sessions requiring libellant to pay six dollars a week for the support of his wife, did not prevent the court of common pleas from decreeing alimony pendente lite. On the contrary, the superior or rather the more general jurisdiction on this subject is in the divorce court. It may decree such sum as the circumstances call for, to be commensurate with the position and financial ability of the parties. The quarter sessions on the other- hand is limited to the prevention of the wife becoming a charge on the public. Both orders may run concurrently during the pendency of the proceedings, but when the common pleas has awarded a divorce, with or without alimony, the jurisdiction of the quarter sessions will be at an end.

Decree revérsed and procedendo awarded.