286 F. 764 | D.D.C. | 1923
G. R. Dee Cole, appellant, as plaintiff, filed his bill asking for a divorce from Minnie B. Cole, the appellee, on the ground of adultery. She filed an answer and cross-bill, in which she denied the allegations of the bill, and charged her husband with adultery with a person named. The court found upon the evidence submitted that both parties were guilty of adultery, and dismissed the bill and cross-bill. The husband appealed. The wife did not. This court reversed the decree as to the husband on the ground that testimony of physicians offered by him should have been received. A new trial took place before another justice, who received the testimony of the physicians referred to in conjunction with other testimony, found that the husband was guilty of adultery with the person named as corespondent in the first decree, and dismissed plaintiff’s bill.
With the exception of the testimony of the. physicians just mentioned, which was in favor of the husband, the testimony was sübstantially the same at both trials. Two justices, acting independently of each other, found against the husband. The testimony was in sharp conflict. The triers of fact saw the witnesses, heard them testify, and observed their demeanor on the witness stand. We are denied this advantage, and hence are not in as good a position aS they were to pass upon the credibility of the testimony. It is the settled rule that where such is the case the finding of the lower court will not be disturbed, unless it is palpably wrong.
It was for the trial justice to decide whether he would believe the testimony adduced by the plaintiff or that adduced by the defendant. He accepted the latter as true. There is in it quite enough to sustain his conclusion that the plaintiff was guilty of adultery as charged in the cross-bill. We have studied the testimony carefully, but do not review it here, because to do so would be profitless.
The decree is affirmed, with costs.
Affirmed.