Walker v. Walker

92 Vt. 443 | Vt. | 1918

Haselton, J.

We have here two petitions for divorce tried together in county court and heard together here. Olivette C. Walker petitioned for a divorce from her husband, Grover C. Walker, on the ground of refusal to support. Her petition was denied. Grover C. asked for a divorce from his wife Olivette C. on the ground of adultery. His petition was granted. Olivette C. brings exceptions. She claims, as the vital question in the cases, that the testimony was not sufficient in law to support the finding by the court of adultery on her part. The testimony is referred to, and it tended to show the following facts: Mr. and Mrs. Walker lived in Springfield in this State. About the latter part of September, 1916, Mrs. Walker became acquainted with one Johnson. Thereafter she went to dances with him at Bellow Falls, Springfield, and Claremont. She ran around, with Johnson considerably, told her husband that she hated him and liked Johnson, and that if she felt like going around with Johnson she would. March 17, 1917, Mrs. Walker and Johnson attended a dance at Bellows Falls. From the dance hall they went to the Hotel Rockingham and spent the night in the same room containing only one bed. To bring about this opportunity they registered as man and wife, and the evidence tended to show that both understood how they were registered. Not only did they register as man and wife but they registered under an assumed name. These facts were amply sufficient as circumstantial evidence to support a finding of adultery. Taft v. Taft, 80 Vt. 256, 67 Atl. 703, 130 Am. St. Rep. 984, 12 Ann. Cas. 959; Lewis v. Roby, 79 Vt. 487, 65 Atl. 524, 118 Am. St. Rep. 984; Lindley v. Lindley, 68 Vt. 421, 35 Atl. 349; State v. North, 90 Vt. 125, 128, 96 Atl. 702; State v. Brink, 68 Vt. 669, 35 Atl. 492.

Mrs. Walker and Johnson both testified, and both admitted staying together in the same bed room at the hotel on the night of March 17, 1917, but both denied having sexual intercourse. They testified that Johnson was taken suddenly ill at the dance in question, and was in great pain, and that thereupon they went to the hotel and registered and occupied the same bedroom during the night, she making cold applications upon him throughout the night as for appendicitis, upon his statement to her that such was his trouble. He testified that he told her he was suffering from appendicitis, but on trial he testified that that was not so, but that he was suffering from stricture following gonorrhea. Evidence was introduced tending to show the improbability of sexual intercourse if his condition was as he claimed it to have been. No one at the hotel was informed of his alleged suffering, no doctor was called. The next morning, without waiting for breakfast, they took the train for Springfield, arriving there at noon or a little after. The following day, which according to the calendar was Monday, Johnson did a little work, but on the Friday following he went, to a hospital in Rutland and was there operated upon. He testified that the operation was for stricture, and was made by an incision through the bladder. After the operation, Mrs. Walker, his companion of the night in question, went to Rutland to be with him, and stayed there three days, visiting him much as a friend, but having nothing to do with nursing him.

Counsel for Mrs. Walker claim that the testimony of Mrs. Walker and Johnson was such that there was really no conflict in the evidence, and no ground for the finding of adultery. But it is no new thing for people charged with crime to deny it, and to invent circumstances to make their denial probable. It was for the court to weigh all the evidence together, and we are convinced and hold that the whole evidence so taken warranted the finding of the trial court as to adultery on the part of Mrs. Walker.

Near the close of all the evidence, counsel for Mrs. Walker moved to be allowed to amend her petition so that it would set up intolerable severity as a ground of divorce. After some discussion the court declined to permit the amendment at the stage to which the cases had progressed. In so ruling the court did not abuse its discretion. Upon this question there is no occasion to cite authorities.

Without amendment of the pleadings it was, however, open to Mrs. Walker to defend against her husband’s petition by way of recrimination. Hemenway v. Hemenway, 65 Vt. 623, 27 Atl. 609; Tillison v. Tillison, 63 Vt. 411, 416, 417, 22 Atl. 531; Shackett v. Shackett, 49 Vt. 195.

And without condonation, of which there is no suggestion, the adultery found to have been committed by Mrs. Walker was a bar to her having a divorce on any ground. Shackett v. Shackett, supra.

We have considered all the exceptions relied on by the excepting party.

The decree dismissing the petition of Olivette G. Walker is affirmed. The decree granting the petition of Grover C. Walker is affirmed.