The opinion
*299 Dissenting Opinion by
Mr. Justice Allen M. Stearne:
The complaint charged personal indignities. A single clandestine act of adultery was alleged. Plaintiff, the husband, was unaware of the wife’s alleged infidelity when the suit was instituted. There was no charge of adultery in the complaint.
Adultery is one of the statutory causes for divorce. So are personal indignities: Act of May 2, 1929 P. L. 1237 sec. 10, as amended, 23 PS 10. In Allen v. Allen, 165 Pa. Superior Ct. 379 , 67 A. 2d 629 , that court decided that evidence of adultery of the respondent is not admissible to establish a charge of indignities to the person of libellant. Judge Hirt said (p. 380) : “Adultery in fact is an indignity in its gravest form. But the legislature wisely has seen fit to make adultery a separate and distinct cause of divorce and has prescribed a procedure appropriate to the seriousness of the charge. One of the purposes of section 9 of the Act of March 13, 1815, P. L. 150, 48 PS §169, is to prevent one, guilty of adultery, from marrying his paramour. The prohibition of that Act is not rhetoric merely; it imposes a personal incapacity on a respondent to marry the person with whom the adultery was committed. Maurer v. Maurer, 163 Pa. Superior Ct. 264 , 60 A. 2d 440 . Moreover, §38 of the Act of May 2, 1929, P. L. 1237, as amended, 23. PS §38, requires that such paramour be named in the libel and, as corespondent, be given notice of the charge so that the aspersion may be disproven if false. The mandates of the divorce law as to the acts, which are evidence of adultery, cannot be avoided by treating them as incidents merely of a course of conduct justifying a decree of divorce on the charge of indignities alone.”
President Judge Rhodes, joined by Judge Dithrich, concurred in the result in the Allen case, supra, but said (p. 383): “I concur in the result reached in the majority *300 opinion as tlie evidence was insufficient to sustain libellant’s charge of indignities to the person, which was the single charge in the libel. But I do not agree that the testimony of libellant that he found respondent in bed with another man on the night of November 15, 1930, was inadmissible. In Hexamer v. Hexamer, 42 Pa. Superior Ct. 226 , a divorce on the grounds of cruelty and indignities was refused, although the respondent was guilty of flagrant and shocking misbehavior constituting a long course of conduct. This Court has consistently held, in subsequent decisions, that a wife’s affair with another man, in itself, may constitute an indignity, and that conduct by a husband with respect to other women, although not sufficient to support a charge of adultery, may be considered as a form of personal indignity to the wife rendering her condition intolerable and life burdensome. Blansett v. Blansett, 162 Pa. Superior Ct. 45, 56 A. 2d 341 ; Macormac v. Macormac, 159 Pa. Superior Ct. 378 , 48 A. 2d 136 ; Smith v. Smith, 157 Pa. Superior Ct. 582 , 43 A. 2d 371 ; Lowe v. Lowe, 148 Pa. Superior Ct. 439 , 25 A. 2d 781 ; Dearth v. Dearth, 141 Pa. Superior Ct. 344 , 15 A. 2d 37 . See, also, Wick v. Wick, 352 Pa. 25 , 42 A. 2d 76 ; McKrell v. McKrell, 352 Pa. 173 , 42 A. 2d 609 .”
In the case now before us, Judge Dithrich said (p. 625).: “Counsel for respondent moved to strike the testimony of Jean Kehrli and argue that you cannot establish indignities by proving adultery. If staying together in the same room at the hotel at Stroudsburg had been the only evidence of misconduct on the part of respondent, we would readily agree; but it was not.”
My review of the testimony convinces me that without the testimony of adultery, plaintiff has not established a case of personal indignities. It may have been most indiscreet for defendant to have stayed too long at the market with the chauffeur, or to drink with him in complainant’s butler’s pantry but such conduct, even *301 cumulative, without stronger evidence of an “affair”, is insufficient proof of personal indignities.
The majority say in the opinion: “We hold, therefore, that evidence of a respondent’s adultery is admissible on a charge of indignities.”
With this I disagree. The Superior Court has decided that indignities cannot be established by proving adultery alone. If such testimony is inadmissible as above if standing alone, I fail to discern how it can be made admissible when coupled with other testimony.
I would reverse the decree of the Superior Court and direct that the complaint be dismissed.