Naylor v. Naylor , 59 Pa. Super. 547 ( 1915 )

Opinion by

Rice, P. J.,

The learned counsel for the appellant complains that the court did not give due weight to the master’s report. He likens the report of a master in a divorce case to the report of a referee in a civil case, and to the decision of the court in a case tried without a jury or in a divorce case where the testimony is taken in open court, citing McMillan v. McMillan, 183 Pa. 91; Krug v. Krug, 22 Pa. Superior Ct. 572, and King v. King, 36 Pa. Superior Ct. 33. But under our decisions the analogy is not perfect. Ever since the decision in Middleton v. Middleton, 187 Pa. 612, the principle that should guide the court of original jurisdiction, as well as the appellate court, in the decision of this class of cases, has been well settled. Thus, in Howe v. Howe, 16 Pa. Superior Ct. 193, this court, speaking through Judge Oblady, said: “Of whatever drudgery the court of original jurisdiction may relieve itself in this class of cases by appointing an examiner, neither it nor we can escape the burden of a careful consideration of the evidence in order to ascertain whether it does, in very truth, establish the statutory grounds for a divorce.” The same principle applies whether the master’s report be in favor of or against the granting of the divorce. The case cited is an illustrative precedent; for there this court, upon a review of the evidence, concluded that it made out a case entitling the libelant to a divorce, and in reversing the decree necessarily reversed the master’s findings which had been approved by the common pleas. Again, n Edgar v. Edgar, 23 Pa. Superior Ct. 220, it was distinctly declared that the Act of March 10, 1899, P. L. 8, which provides for the appointment of a master in a divorce proceeding “who shall take the testimony and return the same, together with a report of the proceedings before him and his opinion of the case to the court,” was not intended to substitute the opinion of the master for a trial by jury or for full consideration of the evidence by the court which makes the final decree. “The opinion of the master is merely advisory to the court, which it may accept and act upon, or disregard in whole or in part, according to its own judgment as to the weight of the evidence or his legal conclusions. It was not intended that the court should abrogate its duty to determine by its own judgment the controversy presented and devolve that duty upon one of its officers.” It is undoubtedly true that it is the duty of the court to give consideration to the opinion of the master, particularly where the veracity of the witnesses is involved. But even on such a question the court must exercise its judgment from an examination and consideration of the evidence, and is in no sense bound to adopt the finding of the master or to treat it as casting the burden on the party excepting to his report. In this case the burden was on the libelant, not because the master had found against him, but because it was there by operation of law from the beginning to the end of the proceedings. A fortiori, where the master’s findings of fact are not distinctly-based upon his belief or disbelief of the witnesses, but upon a supposed policy of law affecting their credibility, the court is as well able as he to judge of the extent to which this supposed policy of law should be carried in determining their credibility. See Phillips’ App., 68 Pa. 130. The pertinency of these observations is apparent. The learned master concluded his detailed recital of the testimony, not with a distinct finding that the facts testified to by libelant’s witnesses were not sufficient to warrant the divorce (he could not have found that) nor with a finding that he disbelieved their testimony, but with this statement: “His reason, however, for recommending that the prayer of the libel be dismissed is based upon the fact that the testimony on which he is asked to make a finding in favor of the libelant and against respondent, consists mainly of the testimony of hired detectives.” This was not a valid reason for refusing the divorce. There is no fixed rule of law or public policy which forbids the granting of a divorce upon the testimony of hired detectives. There are good reasons why such testimony should be scrutinized with great care, and according to dicta in textbooks and decisions it should be regarded with suspicion. The nature of the occupation and the interest which the hired detective has, arising out of his natural desire to please his employer, are reasons why a conscientious and prudent judge will scrutinize his testimony with great care before making it the basis of a decree dissolving the marriage tie. But if by reason of its volume, its clear, distinct and positive nature, the harmony of each of its parts with the others, and its harmony as a whole with the other facts in the case, the testimony induces an abiding conviction of its truth, it is impossible to see why the court should not act upon it. It has been said in some jurisdictions to require corroboration, but as said by Prof. Wigmore: “This ought merely to be a caution of common sense which would occur to any juror:” 3 Wigmore on Evidence, sec. 2066. A leading case upon the subject is Moller v. Moller, 115 N. Y. 456. The opinion in that case gives some countenance to the doctrine that there must be corroboration in this class of cases, but the case did not turn precisely upon that question. There, as here, there was ample corroboration. After referring to that subject, Judge Eakl went on to say: “The consequences which follow a judgment of divorce are so serious and momentous that such a judgment should not be granted without the evidence which furnishes the basis therefor is, after very careful scrutiny, satisfactory and such as can command the confidence of a careful, prudent and cautious judge. But the illicit amours of faithless husbands and wives are usually clandestine, and their wicked paths are hidden from public observation; hence courts must not be duped, and they must take such evidence as the nature of the case permits, circumstantial, direct or positive, and bringing to bear upon it the experiences and observations of life, and thus weighing it with prudence and care, give effect to its just preponderance.” This is the true principle. It does not permit the judgment of the court to be hampered by artificial rules which may or may not be valuable in the particular case. The principle was peculiarly applicable here, and was observed by the learned court below in its review of the testimony and in the conclusions it based thereon. In our consideration of the case we have not gone upon the theory that its findings of fact are conclusive, but on the principle enunciated at the outset of this opinion. After full consideration of the testimony we are led to the same conclusion as that reached by the court below. If the testimony of the three detectives and Clem be believed, there can be no reasonable doubt that the charge made in the libel is established. It is not important to discuss the question whether the presumption of adultery arising from the conduct testified to 'by them is a presumption of law or a presumption of fact. In view of the corroborations furnished by the admitted indiscretions of the respondent and O’Bryan, the letters put in evidence, and the correspondence between the handwriting of O’Bryan on the hotel register with the handwriting of the letters he wrote to the respondent, we are irresistibly led to the conclusion which the court reached. The opinion filed by the court so fully covers the ground that we do not deem it necessary to go into a detailed recital of the facts. In our judgment it meets the substantial questions raised in the argument of appellant’s counsel in a full, adequate and satisfactory manner.

After the opinion of the court concluding that the allegations of the libel were sustained and the libelant was entitled to a divorce, and directing final rule for divorce to issue was filed and the rule was issued and served, the respondent, through her counsel, obtained a rule to show cause why the libelant should not pay an additional counsel fee and an amount to cover the expenses and costs incurred by her in making her defense. An answer was filed by the libelant. On the day the rule for divorce was made absolute and decree of divorce awarded, the court made this order: “May 1, 1914, rule absolute for additional counsel fee of $200 and discharged as to residue of said rule. Stay of proceedings is vacated.” This order is the subject of the sixth assignment of error, it being contended that the amount awarded was inadequate. Clearly it was inadequate if the amount to be awarded, in addition to the $135 allowed by previous orders, was to be determined by the rule that would govern in an action by attorney against client. But the value of the attorney’s services was not the only thing the court was bound to consider. The libelant was a second lieutenant in the United States Army, having a salary of $216 per month, subject to his necessary expenses, which were considerable. He asserted in his answer that he had paid all the costs of this proceeding, including the master’s and stenographer’s charges, and the expense of talcing testimony on behalf of the respondent, as well as his own behalf, in Newark and New York; also that he had been put to great expense in prosecuting his suit and had been obliged to incur indebtedness which he was unable at this time to pay. Moreover, early in the proceedings he was ordered to pay to the respondent $40.00 per month, as alimony pendente lite. In Waldron v. Waldron, 55 Pa. 231, the court said: “It is undoubtedly the duty of the court to make a proper allowance to the wife, if she be not herself of sufficient ability, to enable her to maintain or defend her suit, having regard to the ability of her husband; and it never fails to do so. But this is entirely within the discretion of the court, both as to amount and duration, and not subject to review.” The same principle was announced in the earlier case of Breinig v. Breinig, 26 Pa. 161, and in the later cases of Fernald v. Fernald, 5 Pa. Superior Ct. 629, and Rieder v. Rieder, 21 Pa. Superior Ct. 482. Powers’ App., 120 Pa. 320, and Biddle v. Biddle, 50 Pa. Superior Ct. 43, sustain the proposition that for a plain abuse of discretion the appellate court will reverse, but the cases go no further. When the nature and result of the main proceeding, the aggregate amount allowed for expenses and alimony pendente lite, and the ability of the respondent are considered, we cannot say that the court plainly abused its discretion in not awarding a larger sum. It is asserted by appellant’s counsel that the libelant has not paid, and persistently refuses to pay the additional counsel fee of $200. If that be true, the court below has power, and it will be its duty, to enforce the order.

The assignments of error are overruled, and the decree of divorce is affirmed. The order of May 1, 1914, for additional counsel fee is also affirmed, and the record is remitted with direction to enforce it if it has been not complied with already. It is further ordered that each party pay his and her own costs incurred on this appeal.