Opinion
Submitted May 25th, 1934.
Decided September 27th, 1934.
The proofs adduced in this case involving cross petitions by wife and husband charging each other with adultery, is of a character which might be accepted as true or rejected as untrustworthy. The dismissal of both petitions could well rest either upon the ground of the guilt of both or the innocence of both.
On appeal and cross-appeal from the court of chancery.
Messrs. Weinberger Weinberger, for the appellant.
Mr. Edward Thomas Moore, for the respondent.
Cross-appeals are involved on the dismissal of the wife's petition for divorce on the ground of adultery, and dismissal of the husband's counter-petition on the same ground. An examination of the record discloses that in each case the charge rested wholly upon the testimony of interested parties or persons employed by the respective parties concerning the conduct of the other. The decree of dismissal was recommended by the master on the ground that both husband and wife were guilty of adultery, and that neither was in position to complain of the conduct of the other.
The charge in each case is based upon misconduct alleged to have been committed in automobiles, and the proofs in each case bear a striking similarity. These proofs were of a character which might be accepted as true or rejected as untrustworthy. In either case they fall under the same ban and our reading of the testimony satisfies us that the dismissal of both petitions could well rest upon the ground either of guilt of both or of the innocence of both. The master accepted the former conclusion and we cannot say that he erred in that result.
We are not disposed to modify the decree respecting the custody of the children.
The decree is affirmed, on each appeal.
For affirmance in toto — TRENCHARD, PARKER, LLOYD, CASE, BODINE, DONGES, HEHER, PERSKIE, VAN BUSKIRK, HETFIELD, DEAR, WELLS, JJ. 12.
For reversal as to husband — THE CHIEF-JUSTICE, KAYS, J. 2.