Opinion
October 27, 1928.
April 26, 1928.
Divorce — Cruel and barbarous treatment — Indignities to the person — Wife forced to withdraw from house and family of husband — Act of March 15, 1815, P.L. 150 — Act of June 28, 1923, P.L. 886.
A libel in divorce averring cruel and barbarous treatment and indignities to the person will not be dismissed on the ground that evidence failed to show the wife was forced to withdraw from the house and family of the husband.
Under the Act of June 28, 1923, P.L. 886, amending the Divorce Act of March 15, 1815, P.L. 150, 6 Sm. 286, it is no longer necessary that the indignities offered by the husband to the person of his wife be such as to force her to withdraw from his house and family.
Appeal No. 1539, April T., 1928, by libellant from order of C.P., Allegheny County, No. 501, October T., 1927, in the case of Marcella Way v. Harry C. Way.
Before PORTER, P.J., HENDERSON, TREXLER, KELLER, LINN, GAWTHROP and CUNNINGHAM, JJ. Reversed.
Libel in divorce. Before DREW, J.
The facts are stated in the opinion of the Superior Court.
The court dismissed the libel. Libellant appealed.
Error assigned was the order dismissing the libel.
H.P. Eberharter, for appellant.
No appearance and no printed brief for appellee.
Argued October 27, 1928.
This was an action of divorce by a wife against her husband. The grounds charged in the libel were that (1) respondent had by cruel and barbarous treatment endangered the libellant's life; and (2) had offered such indignities to her person as to render her condition intolerable and life burdensome.
At the hearing in the court below the judge dismissed the libel as soon as it appeared from the evidence of the libellant that she had not been forced to withdraw from the house and family of the respondent, but that he had left her.
The learned judge evidently overlooked the amendment of June 28, 1923, P.L. 886 to the Divorce Act of March 15, 1815, P.L. 150, 6 Sm. 286, under which it is now no longer necessary that the indignities offered by the husband to the person of his wife, rendering her condition intolerable and her life burdensome, be such as "thereby [to] force her to withdraw from his house and family."
Counsel for appellant admitted on the argument that the amendment was not called to the court's attention.
The decree is reversed with a procedendo.