
    Klopfer’s Appeal.
    Where a woman deserts her husband who subsequently files a libel for divorce, the burden of proof is upon her to show that the desertion was justifiable.
    The reasonable cause which furnishes'a, justification of a wife’s desertion of her husband must be such as would entitle her to a divorce under the statute.
    The evidence in this case was held insufficient to justify desertion on the part of the wife.
    A failure to have sexual intercourse is not a ground for divorce.
    Eshbach v. Eshbach, 23 Pa. 343, applied.
    Nov. 5, 1888.
    Appeal, No. 121, Oct. T. 1888, from O. P. No. 1, Allegheny Oo., to review a decree granting an absolute divorce, at June T. 1887, No. 53. Stebbett, J., absent.
    The evidence in support of the decree appears to be sufficiently stated in the opinion of the court below, by Slagle, J.:
    
      “ In this case, Charles F. Klopfer filed a petition for divorce from his wife, Julia, on the ground of desertion. The petition alleged that the parties were lawfully married on May 27, 1884, and lived together until February 16, 1885, when his wife deserted him without cause. To this the respondent made answer, not denying the desertion, but justifying it on the ground of cruel and barbarous treatment by her husband.
    
      “ This case is singularly like the case of Eshbach v. Eshbach, 23 Pa. 343. Aside from the admissions of the answer, the fact of marriage and desertion is clearly proved. On February 16, 1885, the respondent left her husband’s home without his knowledge. She left the key of the house with his sister, who lived in the next house, telling her that she did not intend to return. She admits that she did not inform her husband of her intention of leaving, because she was advised by her mother not to do so, for fear he might coax her to remain. All the facts in evidence show that she has never sought and does not desire a reconciliation. It appeared in evidence that she had packed up all her property, and, after leaving, sent her brother to get them, who applied to the libellant for an order to his sister to deliver them, and after some persuasion, he gave it. From this it is argued that her absence was with his consent, and therefore did not constitute desertion. In Eshbach v. Eshbach there was evidence tending to show, not only that the husband made no effort to restrain his wife’s leaving, but, after she left, she returned for her clothing, which the husband himself gave to her, and that he had intended by his conduct to drive her away. The court said: £ It is not the intention of the husband to drive her away, but the necessity of leaving, by which the case is to be judged.’
    “ It would appear, then, that the libellant is entitled to a divorce, unless the respondent was justified, by his cruel and barbarous treatment, in leaving his home. In Eshbach v. Eshbach, Judge "Woodward says: ‘ It has been several times decided that the reasonable cause which justifies a wife’s desertion of her husband must be such as would entitle her to a divorce, and that is defined by the statute itself to be such cruel and barbarous treatment as endangers life, or the offering of such indignities to her person as to render her condition intolerable and life burdensome.’
    
      “We may apply, to the case, the words of Judge "Woodward, in that£ we look in vain, through the evidence in the cause, for anything which approaches that veiy high standard of enormity.’ Aside from the testimony of the respondent, there is no evidence worthy of consideration. It was testified by some of her friends that she was not in as good health after marriage as before, but no one gives any fact tending to connect her condition with the conduct of her husband, and no one testifies to an act of unkindness. ITer own enumeration of acts of cruelty contain many things too trivial to deserve mention. The principal ones, and the only matters deserving attention, are, that he stayed out late at night, came home drunk, and, on one occasion, threatened her with a pistol, and that he refused to have sexual intercourse with her. As to the first charge, she enumerates two occasions on which he came home drunk, but upon these she does not allege any ill-treatment. She alleges that he was out nearly every Saturday night, and would return home about one o’clock drunk. He denies this, and it seems that, if such were the fact there would be no difficulty in ascertaining the place of Ms carousal, and obtaining witnesses of his debauch. The only evidence of his threatening his wife with a pistol is her own testimony, and it is not at all convincing. They were not in the same room; she went downstairs, first putting on part of her clothing, and then waiting until a servant girl put on her clothing, and then went into the house of Ms sister. He did not attempt to follow her downstairs, but did go into his sister’s house to recall her, and explained what he was doing with the pistol. Thereupon she returned and they slept together that night, and until she left, two days afterward. The evidence not only does not justify the belief that he had any intention to harm her, but does not give ground for a suspicion on her part that he intended to harm her.
    “The only other ground of complaint is that the libellant' refused to have sexual intercourse with his wife. This is a fact necessarily dependent upon the testimony of the parties, or their admissions. She alleges that her husband never attempted to have-connection with her but once, and then did not succeed; he says, that he made many attempts; both admit that no such intercourse was had. The testimony on this point leaves a grave suspicion that the whole difficulty has not been disclosed; their conduct is certainly very singular, but it is not necessary to go into details. Impotency is not alleged, and certainly not proved; and the case of Eshbach v. Eshbach rules that a refusal to have such connection is not cruel treatment.
    “ It is apparent that these people are unfitted for each other, physically or otherwise, and the respondent, having deserted the libellant for more than two years, without just cause, he is in law-entitled to a divorce, and we see no reason why the decree should not be granted.”
    A decree of absolute divorce was entered accordingly:
    
      The assignment of error specified the action of the court in entering the decree.
    
      Levi Bird Duff, with him L. B. D. Reese, for appellant.
    Eshbach v. Eshbach, 23 Pa. 343, has been modified, if not overruled, by Angier v. Angier, 63 Pa. 450. In the latter case the court held that conduct on the part of the husband designed to force his wife to leave him, and, thereby make out a technical case, is an answer to the charge of wilful and malicious desertion.
    The principle of that decision is that a party seeking a divorce must show good faith, and that, no matter what may be the conduct of the other party, if bad faith on the part of the libellant is shown, the divoree will not be granted.
    
      J. M. Swearingen, with him W. B. Rodgers, for appellee.
    The burden of justifying the desertion is on the appellant. Hetrick’s Ap., 117 Pa. 456.
    The evidence fails to show that the appellant was subjected to cruel and barbarous treatment.
    Refusal to have sexual intercourse is not a ground for divorce. Eshbach v. Eshbach, 23 Pa. 343.
    
      Jan. 7, 1889.
   Per Curiam,

The marriage and desertion were .clearly proved, by independent testimony, outside of any admissions in the answer. The respondent having deserted her husband, the burden is upon her to show that she was justified in doing so. This she has not done. It was said by Justice "Woodward in Eshbach v. Eshbach, 23 Pa. 342: “ It has been several times decided that the reasonable cause which justifies a wife’s desertion of her husband must be such as would entitle her to a divorce, and that is defined by the statute itself to be such cruel and barbarous treatment as endangers life, or the offering of such indignities to her person as to render her condition intolerable and life burdensome.” We need not review the testimony in this case. It is sufficient to say that it does not measure up to the standard above indicated. Our law in regard to divorce is loose enough already and we are not disposed to relax it further by judicial construction. The libellant was entitled to his decree.

Decree affirmed and the appeal dismissed at the cost of the appellant. ’ A. B. W.

Cf. Clark v. Clark, Sup. Ct., 2 Ches. Co. R. 38, and Bay’s Ap., 4 Cent. R. 281.  