Criser v. Denied, (No. 6726)

• Decision Date: 25 November 1930
• Docket Number: (No. 6726)
• Citation: 109 W.Va. 696
• Parties: Edward K. Criser v. Beulah D. Criser(Rehearing denied)
• Court: West Virginia Supreme Court

109 W.Va. 696

Edward K. Criser

v. Beulah D. Criser(Rehearing denied)

(No. 6726)

Supreme Court of Appeals of West Virginia.

Submitted November 18, 1930.

Decided November 25, 1930.

December 8, 1930.

1. "In order to warrant a decree for divorce on the ground of adultery, the burden rests upon the complainant to make out his case by such clear, strong and convincing evidence as to carry conviction to the judicial mind. Evidence which raises only a strong suspicion of guilt will not suffice." Murrin v. Murrin, 94 W. Va. 605.

2. Charges of adultery made by the husband against the wife, though they prove to be false, will not ordinarily be considered as charges of prostitution within the meaning of the Code, chapter 64, section 6.

3. Where one spouse in good faith institutes suit for divorce against the other, it is a general rule that there can be no desertion by the one of the other pending the suit, though it may develop that there is no ground for divorce.

Appeal from Circuit Court, Taylor County.

Action by Edward K. Criser against'Beulah D. Criser for divorce, in which defendant filed a cross-bill. The trial chancellor dismissed the wife's cross-bill, and granted plaintiff an absolute divorce, and defendant appeals.

Reversed; bill dismissed.

William. T. George, for appellant. William P. Samples, for appellee.

Maxwell. Judge:

In the circuit court of Taylor County, Edward K. Criser sued his wife for an absolute divorce upon the ground of adultery. She filed an answer and cross-bill in which she denied the charge of adultery and prayed for a divorce from bed and board on the grounds of cruel and inhuman treatment 109 w. Va. and desertion. The trial chancellor dismissed the wife's crossbill and granted an absolute divorce to the plaintiff. This appeal follows.

Plaintiff testified in substance as follows: On the evening of March 23, 1929, about 8:15 o'clock he came to his home in Grafton, after having finished his work on the railroad, and found no one there. He stepped out on the street near his home and about 9:15 saw his wife enter the house, turn on all the lights, go to her bedroom, snap on the lights two or three times there, then come out of the house, get her ear from the garage and leave. She went toward the west end of Fetterman and picked up Dorsey Warder, and then drove in the direction of Pruntytown. Thereupon he, plaintiff, returned to his house, called Sam Trysler, a taxi driver, and they started toward Pruntytown on the Northwestern Turnpike, a main state route, in the latter's cab. They drove slowly because there were a good many cars on the Pike. About 11:00 o 'clock just to the east of Pruntytown they found his wife's car, a Ford coupe, parked on the right of the road, two wheels on the concrete and two off, with no lights burning. Plaintiff and Trysler drove beyond the parked car twenty feet or more, where plaintiff alighted and walked back. He found his wife sitting on Warder's lap, but their clothes were not disarranged. A slight altercation ensued in which plaintiff hit Warder with a rock, and following this he and Trysler drove back to Grafton where he called J. W. Wooddell, a member of the State Police, and the three of them drove back to the scene of the trouble. They did not see his wife's car again, but on their way back to Grafton, just as they came near to town, they saw Warder who, when he saw them, ran away.

In certain particulars the testimony of the plaintiff as above narrated is not clear. At first he claimed that he saw his wife sitting on Warder's lap when he alighted from the taxi and walked back; upon further questioning he denied this and claimed that he saw them in such position as he drove by the parked Ford. He will not state positively that when he came upon them, they were in fact in the act of intercourse.

Trysler's testimony does not corroborate that of the plain tiff in all details. He said that the parked car had lights burning on it, either dim or bright, and he did not see who was in the Ford as he and plaintiff passed. He said he got out of his taxi, walked back to the parked car, and although he came within a few feet of the parties, he did not positively identify the man with Mrs. Criser as Warder, but he said it resembled him. Plaintiff introduced several other witnesses who testified that at various times preceding March 23rd, they had seen defendant in company with Warder. None of these witnesses, however, testified that defendant and Warder were in a compromising position when they saw them.

Defendant testified in substance as follows: She spent the evening of March 23rd up until about 10:00 o'clock with some friends and then went home. She switched on the lights in the house in order to put in a 'phoue call to her brother who lived at Valley Inn, a point beyond Pruntytown on the Pike. She wanted her little nephew to spend the night with her at ber home and asked for permission to come and get him. Thereupon she got her car, started for Valley Inn, and had reached the place where plaintiff found her when her engine became hot. She got out of the car. Just then her husband drove by. No one was with her. After an altercation with her husband, she drove on to Valley Inn, arriving there about 11:00 o 'clock. Because her husband accused her of being drunk and trouble would likely result, she did not get her nephew, but came back to Grafton and spent the night at the home of a friend.

Defendant's testimony in the main is corroborated by that of the friends whom she visited in the earlier part of the evening, by her brother and sister-in-law who lived at Valley Inn, and by the friend with whom she spent the night. Defendant stated that she had talked to Warder only...