Augur v. Augur.

• Decision Date: 24 October 1946
• Court: Connecticut Supreme Court
• Parties: AUGUR v. AUGUR.

133 Conn. 211

49 A.2d 665

AUGUR

v.AUGUR.

Supreme Court of Errors of Connecticut.

Oct. 24, 1946.

Appeal from Superior Court, New Haven County; Shea, Judge.

Action by Edward D. Augur against Mary H. Augur for divorce on ground of intolerable cruelty tried to the court. From a judgment for defendant, plaintiff appeals.

No error.

Edward S. Snyder, of New Haven, for appellant.

Charles Albom, of New Haven (Nelson Harris, of New Haven, on the brief), for appellee.

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS, and DICKENSON, JJ.

DICKENSON, Judge.

This is an action for divorce on the grounds of intolerable cruelty. The trial court held that the plaintiff had failed to support the allegations of the complaint with any credible evidence, and rendered judgment for the defendant. The plaintiff has appealed on the main ground that upon the undisputed and overwhelming evidence he was entitled to judgment.

Among the facts found by the trial court are the following: The parties intermarried in 1904. At the time of trial they were both sixty-six years of age. They lived a happy normal life until 1942 when the plaintiff began to pay attention to another woman and the defendant remonstrated with him about his conduct. Thereafter, the plaintiff left the defendant without justification and continued his association with the other woman. The plaintiff weighed about two hundred pounds and the defendant about one hundred. The plaintiff assigns error because of the absence of any finding ‘as a fact’ that there was no intolerable cruelty. The burden was upon the plaintiff to prove intolerable cruelty. The conclusion of the court that he had failed to support the allegations of his complaint with credible evidence and the absence of any affirmative finding of fact of intolerable cruelty sufficiently support the judgment. Mercer v. Mercer, 131 Conn. 352, 353, 39 A.2d 879, and see Meech v. Malcolm, 88 Conn. 720, 726, 92 A. 657; Elwood v. Connecticut Ry. & Lighting Co., 77 Conn. 145, 147, 58 A. 751, 1 Ann.Cas. 779.

The plaintiff testified to numerous acts of physical abuse by the defendant and produced the testimony of other witnesses in limited support of his testimony. The defendant denied these charges seriatim and offered the testimony of an adult son who stated that he had never observed any trouble between his parents although he had lived with them practically since his birth. Conceding that the question of credibility is ordinarily one for the trial court alone, the plaintiff contends that the probabilities of the case so greatly favor the plaintiff that the trial court in reason could not disbelieve his story. As a corollary, he assigns error in the trial court's statement in its conclusions that the plaintiff's testimony was marked by an utter disregard of the oath he took as a witness.

A chief reason for the rule that the trier is the sole judge of the facts is that his observation is not confined to the spoken, word or, as is this court, to the printed word, but he has the witness before him on the stand. ‘It is the peculiar province of the trial court to observe the demeanor of the parties and their witnesses and to draw inferences therefrom as to the motives underlying their testimony and conduct.’ Dadio v. Dadio, 123 Conn. 88, 92, 192 A. 557, 559. The bulk of the evidence consisted of accusations by the plaintiff and denials by ...