Mendenhall v. Mendenhall

Opinion by

William W. Porter, J.,

The question raised by the first assignment of error is, whether the court below should have required the counsel for the libellant to first address the jury. The general rule is that the appellate court will not reverse a judgment, because the court below, in the exercise of its discretion, made a mistake in prescribing the order in which counsel,should address the jury: Robeson v. Whitesides, 16 S. & R. 320; Commonwealth v. Contner, 21 Pa. 266; Hartman v. Ins. Co., 21 Pa. 466; Smith v. Frazier, 53 Pa. 226; Blume v. Hartman, 115 Pa. 32; Patterson v. Marine Bank, 130 Pa. 419. In the case at bar, the respondent calls our attention to a rule of the court below which, inter alia, provides that “ if both parties have given evidence, the counsel, having' the right on the pleadings, shall begin, stating explicitly the grounds on which he intends to rely,” etc. We are asked to say that this rule of court required the libellant’s counsel to open to the jury and that the court erred in not compelling him to do so.

Rules of court are best interpreted by the court making them: McLane v. Hoffman, 164 Pa. 493; Higgins Carpet Co. v. Latimer, 165 Pa. 617. When, however, they affect the rights of parties their strict observance may be enforced by the appellate court: Brennan’s Estate, 65 Pa. 16. A rule of court upon the faith of which a party litigant may have acted or relied, and the failure to observe which will result in injury, cannot be arbitrarily abrogated by the court which made it. Where, however, the rule is for the regulation and orderly transaction of the business of the court, a larger discretion may be conceded.

The rule before us relates wholly to the proceedings in the course of trial. Its construction and application must be largely-left to the discretion of the trial judge. The rule leaves it to the court to determine who, upon the pleadings, is entitled to begin the addresses to the jury. It is by no means clear that under the pleadings the libellant was bound to begin. The libellant alleged desertion. The respondent justified the desertion on the ground of the libellant’s conduct. Thus, the respondent, in some degree, assumed the affirmative of the issue. We are unable to see that the trial judge unwisely exercised his discretion in prescribing the order of address to the jury.

There can be no doubt that the learned judge of the court below rightly ruled that there was no testimony in the cause which would justify the jury in finding for the respondent on the ground that the alleged desertion was justified by reason-of the cruel and barbarous treatment of her by her husband. The testimony disclosed but one occurrence which would seem to suggest such treatment. The libellant, when threatening to correct his daughter for unfilial language to him, was seized by the respondent. There was a short struggle between the parties in which both received some trifling physical injury. If this should be regarded as an act of cruelty on the part of the husband, it was not sufficient to justify the desertion. The degree of cruelty to justify a desertion is the same as that required in a suit for divorce on the ground of cruel treatment. Nothing less will answer. Separation is not tobe tolerated for light causes, and all causes are light which the law does not recognize as ground for the dissolution of the marriage bond: Grove’s Appeal, 37 Pa. 443; Eshbach v. Eshbach, 23 Pa. 343; Nye’s Appeal, 126 Pa. 341; Gordon v. Gordon, 48 Pa. 226; Hahn v. Bealor, 132 Pa. 242. No single act of cruelty, however severe, that comes short of endangering life, is sufficient to justify a divorce: May v. May, 62 Pa. 206; Nye’s Appeal, 126 Pa. 341; Richards v. Richards, 37 Pa. 225; Hardie v. Hardie, 162 Pa. 227.

Furthermore, there was no such course of treatment of the respondent by the libellant as rendered her condition intolerable or her life burdensome. The single act of alleged cruelty above referred to was not such an indignity to her person as forced her to withdraw from the libellant’s house. It is not of a single act that the law speaks in this connection, 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 -trial judge, however, in his charge carefully and fairly reviewed the testimony bearing upon the alleged indignities suffered by the respondent, and allowed the jury to pass upon the question whether she suffered such indignities to her person as rendered her condition intolerable and her life burdensome. The second, third and fourth assignments are overruled.

The proof, the rejection of which by the court below is made the basis of the fifth assignment, amounts to ’ an offer to show that there was an unmarried woman living’ at the libellant’s house with a child, some five years after the alleged desertion ; that he took a fatherly interest in the child, even taking it to its mother’s room. Had the offer gone much further in the same direction it clearly should not have been received. Adultery itself by a libellant after desertion by the respondent does not deprive the libellant of his right to a decree for desertion : Ristine v. Ristine, 4 Rawle, 459. The offer here, however, is to prove only facts, from which an inference of wrongdoing is to be made, and this inference is to be made the basis for a second inference that the libellant’s application for divorce was not made in good faith because of desertion. A presumption cannot be drawn from a presumption: Douglass v. Mitchell’s Executors, 35 Pa. 440. The respondent claims that the evidence should have been admitted for the reason, first, that it would have disclosed a cause for the wife’s failure to return to her husband. The act complained of is fixed at a date some five years after the desertion, and the statutory time required by the act to justify a decree was long past. The second reason given by the respondent is no more substantial. It is that the evidence tended to show a purpose in the proceeding at variance with good faith in the claim of desertion. There is a manifest difference between motive for divorce and ground for divorce. The ground being substantial, the motive matters not. If a course of action on the part of the husband be such as to lead to the conclusion that it was to drive the wife to conduct upon which he might obtain a divorce, the intent becomes a matter of inquiry, as in the case of Angier v. Angier, 63 Pa. 450. But conduct of the husband, long subsequent to the desertion cannot be set up as a bar to the proceeding for divorce based on the desertion.

We have discussed the facts as briefly as possible. No good purpose is subserved by spreading upon the reports details of domestic unhappiness, unnecessary to support the judgment of the court. We have, however, given the testimony in this case a careful scrutiny, both with reference to the particular questions raised and to the merits of the whole controversy. This would seem to be a duty under the decisions of the Supreme Court, in Angier v. Angier, 63 Pa. 450, and Middleton v. Middleton, 187 Pa. 612. We find no reason for disturbing the decree entered by the court below.

Decree affirmed.