Summary
In Long v. Long, 160 Miss. 492, 135 So. 204 (1931), reversing a decree and dismissing a bill for divorce, the Court, commenting on the husband's allegations of cruel and inhuman treatment, said the evidence reflected that the "honors are even" between the parties; that each was "as much of an offender as the other, the acts of each being usually provoked by acts and words of the other.
Summary of this case from King v. KingOpinion
No. 29203.
June 1, 1931.
DIVORCE.
Where both husband and wife provoked acts of cruelty, neither is entitled to divorce on ground of cruel and inhuman treatment.
APPEAL from chancery court of Lee county; HON. J.A. FINLEY, Chancellor.
C.A. Bratton, of Pontotoc, for appellant.
Where the faults of husband and wife are nearly balanced, and are of a similar nature, neither party can be heard to complain in a court of justice.
Gormley v. Gormley, 108 So. 307.
With reference to the charge of adultery, the evidence can at the most, if none of it were denied, amount only to suspicion. If the proof shows adultery on the part of the appellant, such conduct was condoned by the appellee.
Blair Anderson, of Tupelo, for appellee.
The chancellor saw and heard the witnesses testify and his finding of the fact should not be disturbed unless it is manifestly wrong.
Heard v. Cottrell, 100 Miss. 42, 56 So. 277; Lott v. Hull, 104 Miss. 308, 61 So. 421; Southern Plantation Co. v. Kennedy Co., 104 Miss. 131, 61 So. 166; Bland v. Bland, 105 Miss. 478, 62 So. 641; Freeman v. Freeman, 107 Miss. 750, 66 So. 202; Himber v. Himber, 109 Miss. 216, 68 So. 161; Glover v. Falls, 120 Miss. 201, 82 So. 4.
Of course it is practically impossible to prove otherwise than by circumstantial evidence the act of adultery but circumstantial evidence when proved with reasonable certainty is sufficient provided the conclusion sought to be established follow logically from the facts.
Banks v. Banks, 118 Miss. 783, 79 So. 841.
Argued orally by C.A. Bratton, for appellant.
This is an appeal from a decree awarding the appellee a divorce from the appellant, his wife. The bill alleges two grounds of divorce, habitually cruel and inhuman treatment and adultery; the divorce being granted on the first of these grounds. As to the cruel and inhuman treatment, the evidence discloses that "honors are even" between the parties, each being as much of an offender as the other, the acts of each being usually provoked by acts and words of the other. Where such is the case, neither party is entitled to a divorce on the ground of cruel and inhuman treatment. Gormley v. Gormley, 161 La. 121, 108 So. 307; Healy v. Healy, 77 Ark. 94, 90 S.W. 845; 1st Bishop on Marriage and Divorce (5 Ed.), section 764; Keezer on Marriage and Divorce (2 Ed.), section 284.
The court below in its decree pretermitted a decision on the charge of adultery, and counsel for both parties, after inquiry by the court, suggest that we now decide that issue.
Without setting forth the evidence, it will be sufficient to say that the evidence, in support of the charge is wholly circumstantial, both the circumstances and the fact itself being denied by the appellant, in which denial there is corroborating testimony. After carefully weighing all of the evidence, we are of the opinion that it is insufficient to justify a divorce on the ground of adultery.
Reversed, and bill dismissed.