Orlando v. Polito
| Decision Date | 12 December 1955 |
| Docket Number | No. 41758,41758 |
| Citation | 84 So.2d 433,228 La. 846 |
| Parties | Don ORLANDO v. Mrs. Anna POLITO, Wife of Don Orlando. |
| Court | Louisiana Supreme Court |
Richard Dowling, New Orleans, for appellant.
Piazza & Gulotta, New Orleans, for appellee.
On September 25, 1953, Don Orlando filed suit for a divorce on the ground that he and his wife, Mrs. Anna Polito Orlando, had been living separate and apart for more than two years. The wife in her answer denied the separation as alleged, and averred specifically that on or about April 29, 1953, approximately five months before the suit was filed, her husband returned home seeking a reconciliation, that on this occasion he spent the night in their home, and that they had sexual relations.
On the issue as thus made up the case went to trial on the merits. After hearing the testimony of the witnesses the trial judge dismissed plaintiff's suit and also overruled his motion for a new trial. Plaintiff has appealed.
The wife and a daughter testified that the reconciliation took place as alleged, and that plaintiff spent the night of April 29, 1953, at home with his wife. This testimony was flatly contradicted by plaintiff. Consequently we have here a case involving the credibility of the witnesses. The trial judge tells us that he had an opportunity to observe the witnesses on the stand, that he did not believe plaintiff was telling the truth, but that on the contrary he accepted the testimony of the wife and the daughter, which completely discredited the testimony given by the plaintiff.
It is well settled that the trial judge's findings on question of fact, and particularly on questions involving the credibility of witnesses who testified before him, are entitled to great weight on appeal and will not be disturbed unless clearly erroneous. Williams v. Louisiana Ry. & Nav. Co., 121 La. 438, 46 So. 528; Barnes v. Le Blanc, 207 La. 989, 22 So.2d 404; Plunkett v. United Elec. Service, 214 La. 145, 36 So.2d 704, 3 A.L.R.2d 1437. We find no manifest error here.
After judgment had been rendered dismissing plaintiff's suit, he filed a motion for a new trial on the ground that he had stayed in a hotel in Hammond on the night of April 29, 1953, the night which his wife and daughter had testified he spent at home in New Orleans, and that a new trial should be granted so that evidence of this fact could be adduced.
The wife filed her answer to Orlando's suit for divorce on November 9, 1953, specifically...
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...recognized in the jurisprudence of this state. See Kendrick v. Kendrick, 1958, 236 La. 34, 38, 106 So.2d 707, 708; Orlando v. Polito, 1955, 228 La. 846, 849, 84 So.2d 433, 434; Wier v. Grubb, 1955, 228 La. 254, 271, 82 So.2d 1, 7; Olivier v. Abunza, 1954, 226 La. 456, 461, 76 So.2d 528, 530......
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