Sharp v. Sharp , 1916 Pa. Super. LEXIS 40 ( 1916 )

Opinion by

Orlady, P. J.,

The above parties were married February 26, 1884, and after living together as husband and wife until 1897, the wife left her husband’s home. In 1898, the wife instituted proceedings in divorce against her husband on the ground of his adultery, and in 1899 the husband began a similar proceeding against his wife in which he alleged her desertion.

These issues were tried June 22, 1900, in Common Pleas No. 1, when each action was dismissed for want of adequate proof.

About ten months later, the husband made overtures to his wife for a renewal of the marital relation, and after considerable correspondence between the parties, and between their respective attorneys no reconciliation was effected. This action by the husband was then begun November 22, 1913, in which the wife is charged with desertion, and culminated in a trial before a jury with a verdict on November 4, 1915, in favor of the husband.

The first assignment of error relates to the exclusion, under objection, of parts of letters written in 1901 by counsel of the wife, to the counsel of the husband, and these were properly excluded for the reason that they related wholly to incidents preceding the earlier divorce proceedings, at which trial it was decided by a jury that the offense they suggested did not exist, hence these facts could have no bearing on the issue being heard. The principal contentions of the wife were that the husband was bound “to provide a home in which he should live with his wife and child by themselves, and without other inmates of the home, except such as were a part of their family” (fifth assgt.); “That the attempts to effect a reconciliation, were not made in good faith, and with a sincere desire, upon the part of the libellant at the time they were made, that they should be accepted by the respondent” (tenth assgt.).

These propositions were well disposed of by the court in saying to the jury, “From the evidence which you have, you must decide whether that offer was or was not a bona fide offer, whether it was made in good faith, and whether he had provided at the time he made the offer, a decent and proper home for his wife and daughter. If you find that he wrote and made the offer in good faith and that he provided a proper place for them to live, then the refusal of the wife to go there would constitute a wilful and malicious desertion, and you should render a verdict in favor of the libellant.......On the other hand if you find, from the way in which the letters are written, from his manner on the stand, from any other evidence in the case, that he did not make the offer in good faith, and did not intend his wife to accept the offer, or that he did not have a proper place for her to go, that he wrote simply for the purpose of laying a ground for divorce, your verdict should be for the respondent.”

It appears, that the offer was made to “again take Mrs. Sharp back, together with their daughter and furnish them with a home thoroughly suitable to their condition in life and his means of subsistence.”

The libellant was a medical practitioner, and while he was seeking to establish a practice, he leased for the term of three years, a three story brick house, which had been occupied by a physician who had recently died. His family would have exclusive possession of the first and second floors of this building. The wife objected to the neighborhood, and though repeated requests were made by the husband for her return, she declined and persisted in remaining apart from him for more than twelve years before this suit was brought. Her insistence on having a separate building for their sole occupancy was not reasonable under the present congested conditions controlling home life in a city, and but few persons can hope for, much less maintain, such an establishment. The question of his good faith could only be determined by the jury in the light of all the circumstances, and no case has yet fixed the gauge of good faith in such an offer to be “a sincere desire that his offer be accepted.”

Good faith or the want of it, is not a visible, tangible fact that can be seen and touched, but rather a state or condition of mind which can only be judged of by actual or fancied tokens and signs. It means free from design and fraud; honesty of intention; the opposite of bad faith; the doing of a thing honestly, and in this practical sense it must have been understood by the jury, under the clear and adequate charge of the trial judge. The character and location of the proposed home was entirely for the jury and when at the time the offer was made the wife was living in a single room, and in the proffered place she would “have none of the onerous duties of keeping house” and after she had persisted in remaining apart from her husband for twelve years after the failure of the divorce proceedings, it is not surprising that the jury found that her objection was not made in good faith.

The trial was fairly conducted, and the verdict was clearly warranted by the testimony. We find no error in this record to justify a reversal of the judgment. .

The assignments are overruled and the judgment is affirmed,.