The opinion
Dissenting Opinion by
Mr. Justice Bell:
I dissent from the majority opinion and its affirmance of the decree of divorce.
The crux of this case revolves around the admissibility of the alleged adultery of the defendant at Stroudsburg on June 6, 1948. I feel very strongly that adultery is not only adultery within the meaning of our divorce laws, but it is also a very great and shocking indignity; and while not of itself sufficient to warrant a divorce on a complaint of “indignities to the person”, it may, if known to the injured spouse, form a large and important link in a chain of indignities. Was it known to plaintiff and was evidence thereof admissible in the present case?
The Act of May 2, 1929, P.L. 1237, §10, 23 P.S. §10 provides: “. . . it shall be lawful for the innocent and injured spouse to obtain a divorce from the bond of matrimony, whenever it shall be judged . . . that the other spouse . . . shall have offered such indignities to the person of the injured and innocent spouse, as to render his or her condition intolerable and life burdensome.” *
*302 Plaintiff commenced Ms suit for divorce on September 25, 1948; on November 10, 1948, pursuant to rule, plaintiff filed a bill of particulars; on December 2, 1948, the trial of this case commenced; on December 3, 1948, plaintiff filed a further bill of particulars in which he averred his wife’s adultery on June 6, 1948, which he had then learned for the first time. Up to that moment defendant’s conduct (as we shall see) had not made plaintiff’s condition intolerable or life burdensome; how, therefore, is it possible to say, as the majority opinion does, that something which plaintiff did not know about made Ms condition intolerable and life burdensome?
The closest case the majority opinion has to support its conclusion is Holbrook v. Holbrook, 160 Pa. Superior Ct. 129 , 50 A. 2d 709 , from which it quotes with approval the following language: “Testimony as to respondent’s conduct after the parties’ separation is relevant for the purpose of shedding light upon respondent’s behavior prior to the separation”. In my judgment the law goes even further and holds that misconduct which occurs after the parties have separated, but before the commencement of the divorce suit, may be admissible as substantive proof of an indignity: Wick v. Wick, 352 Pa. 25, 33 , 42 A. 2d 76 ; Macormac v. Macormac, 159 Pa. Superior Ct. 378, 382 , 48 A. 2d 136 . However, it seems to me both clear and obvious that under the plain language and mandatory requirements of the divorce statute neither adultery nor any other misconduct (irrespective of when it occurred) which is unknown to plaintiff until after he has filed an action for divorce on the ground of indignities could possibly have made Ms condition intolerable and life burdensome at the time or before he commenced his suit. In Hofmann v. Hofmann, 232 N.Y. 215 , 133 N.E. 450 , the Court of Appeals expressed this thought in apt language : “The consequences of adultery, the facts incident *303 thereto, may cruelly injure the innocent spouse, but clandestine adultery of one of a married couple cannot in itself affect the mind, or the body of the other. If, however, the bread of illicit affection is not eaten in secret, if the adultery is open . . . [or] flaunted in the eyes of the public or dragged into the presence of the blameless wife or husband, two wrongs arise out of the act: the adultery itself . . . and cruelty . . . ”. It follows, therefore, that the evidence of this clandestine adultery was inadmissible.
Moreover, the authorities which construe the Divorce Act, likewise demonstrate that the evidence was inadmissible in this case.
The term “Indignities to the Person” is incapable of exact definition, but it means and requires a course of conduct which is sufficient to render a spouse’s condition intolerable and life burdensome. A single brutal act may be sufficient to justify a divorce on the ground of Cruel and Barbarous Treatment, but is insufficient to base a decree for divorce on the ground of Indignities. Indignities include assaults and batteries, abusive or vulgar language, false and derogatory accusations, unmerited reproach, intentional incivility, studied neglect, manifest disdain, as well as all declarations and all conduct which humiliates the other spouse or holds her or him up to ridicule or contempt, or which seriously affects the health or peace of mind of the other. In other words, any unjustifiable conduct which grievously wounds or seriously affects the body or the health or the mind of the other spouse and which destroys the legitimate ends and objects of matrimony, constitutes an indignity. Each case must be judged on its own facts, and the mental and physical conditions of each of the parties and their social status or station in life are elements which may be considered in order to determine the effect which the conduct or language of that spouse would likely have upon the other: Breene *304 v. Breene, 76 Pa. Superior Ct. 568 ; Crawford v. Crawford, 64 Pa. Superior Ct. 30 ; Elmes v. Elmes, 9 Pa. 166 ; Wick v. Wick, 352 Pa. 25 , 42 A. 2d 76 ; McKrell v. McKrell, 352 Pa. 173 , 42 A. 2d 609 ; Russell v. Russell, 37 Pa. Superior Ct. 348 .
Iu the light of the aforesaid cases, and dozens of others which could be cited, how is it possible that some conduct of which plaintiff was ignorant, could affect his mind, body or health or could make his condition intolerable and life burdensome?
I have carefully studied, as the law requires us to do, the voluminous record, including 525 pages of testimony, and if the adultery (actual or alleged) is inadmissible and is eliminated or excluded from the case, libellant utterly failed to prove a case of indignities.
This Court in allowing an appeal from the Superior Court in a divorce case may confine or restrict the appeal to one-or more questions of law; or we may allow the appeal generally, in which event, in the language of Mr. Justice, now Chief Justice Drew, in Dash v. Dash, 357 Pa. 125, 126, 127 , 53 A. 2d 89 : “Where, as here, the action was heard by a master, we are obliged [except where there has been an issue and jury trial] to malee an independent investigation of the evidence in order to determine whether in truth it does establish a legal cause for divorce: Rinoldo v. Rinoldo, 125 Pa. Superior Ct. 323 , 189 A. 566 ; Nacrelli v. Nacrelli, 288 Pa. 1 , 136 A. 228 . In maleing the review de novo we have in mind that the burden is upon libellant to prove his case by clear and satisfactory evidence, and that there must be a preponderance of the evidence in his favor or the divorce must be refused: Sleight v. Sleight, 119 Pa. Superior Ct. 300 , 181 A. 69 . ... We have carefully considered all the evidence and we cannot agree with the Master’s findings of fact and recommendation. We think he was over-persuaded by libellant, of whose *305 credibility we have serious doubts. Our independent inquiry reveals the following facts
In Bobst v. Bobst, 357 Pa. 441, 444 , 54 A. 2d 898 , we said, speaking through Mr. Justice Linn : “It is the duty of appellate courts in divorce cases, unless there has been an issue and jury trial, to examine the evidence de novo for the purpose of determining whether the complaint alleged in the libel has been sustained. The scope of the court’s inquiry therefore is not limited, as it is in reviewing appeals in equity or where jury trial has been waived, to examination of the record to see whether there was evidence to support the challenged findings of fact.”
Moreover, in Bobst v. Bobst, 357 Pa. 441 , 54 A. 2d 898 ; in McKrell v. McKrell, 352 Pa. 173 , 42 A. 2d 609 ; and in Wick v. Wick, 352 Pa. 25 , 42 A. 2d 76 , we based a reversal of the Superior Court on our independent and exhaustive study, analysis and revieio of the facts, which we found were opposite or contrary to the findings of the Superior Court. In Dash v. Dash, 357 Pa. 125, 126, 127 , 53 A. 2d 89 , and in Esenwein v. Esenwein, 312 Pa. 77 , 167 A. 350 , we affirmed the Superior Court, but only after we had made an independent study, analysis and review of the facts. In the light of these authorities (which could be multiplied) I cannot understand how any one can doubt our power and bounden duty to make an independent study and analysis of the facts in order to determine whether the plaintiff clearly proved his case.
Under the evidence — if evidence of the alleged adultery be excluded — plaintiff undoubtedly failed to prove (by clear and satisfactory evidence) a case of indignities and consequently his libel or complaint must be dismissed !
If, however, we assume that the majority opinion is correct in holding that evidence of the defendant’s alleged adultery was admissible and that she, the defend *306 ant, was guilty of adultery, the majority’s statements and conclusions with respect to the defendant’s petition to remand are unjustifiable!
The decision of the trial judge was based almost entirely upon the alleged adultery of the defendant in Stroudsburg oh June 6, 1948. The Superior Court likewise placed tremendous importance upon this episode. Jean testified that at Mrs. Phipps’s direction she (aged 16) and Brad Sweet (son of Mrs. Phipps) occupied the room at the hotel with the twin beds, while Mrs. Phipps and the chauffeur slept in the room with the double bed. Of course this testimony was vigorously objected to by the defendant as inadmissible and hearsay. Jean’s testimony was contradicted by defendant and the chauffeur, both of whom testified that the defendant and the girl occupied one room while Brad and the chauffeur occupied the other. Brad did not testify. The trial judge believed Jean, although her subsequent conduct certainly cast considerable doubt on her credibility.
Defendant presented a petition to the Superior Court requesting it to remand the record to the trial court for the purpose of taking the testimony of Brad Sweet who, according to the petition' and Brad’s attached affidavit, would testify to his mother’s innocence and that Jean and his mother occupied one room that night and he and the chauffeur the other room. Brad’s affidavit alleged in effect that libellant had bribed him not to testify and had also poisoned his mind against his mother by false stories and had induced him to keep out of the State'of Pennsylvania so that .he could not be. subpoenaed.
The Commonwealth, is • in every divorce case an important and interested third party and it seems to me that bribery and suppression of evidence'are matters of such importance, tó' the Commonwealth that on this ground alone defendant’s, petition to remand should *307 have been granted. If Brad’s accusations of bribery are true, plaintiff would not be entitled to a divorce and the decree in his favor would have to be set aside, even under the majority opinion which admits the testimony of Jean. The majority opinion does not discuss plaintiff’s alleged bribery; it merely describes Brad’s affidavit as cumulative evidence in favor of his mother and assumes that the Superior Court took this cumulative effect into consideration “in rejecting petition to remit”. Unfortunately for the majority’s assumption, the Superior Court did not dismiss defendant’s petition or even mention the petition or the affidavit at all. Even more unjustifiable, to put it mildly, is the majority’s assumption that the trial judge would disbelieve Brad and continue to believe Jean, although the trial judge had not seen Brad or heard his story.
If evidence of adultery unknown to the plaintiff is admissible, as the majority opinion holds, then in the interest of justice the majority should at least remit the record to the court below with directions to reopen the proceedings and after hearing and considering the grave accusations made by Brad Sweet, make such decision on the merits of the divorce case as may be proper and just.
Italics throughout, ours.