Shook v. Shook
| Decision Date | 10 November 1931 |
| Docket Number | 7000. |
| Citation | 161 S.E. 235,111 W.Va. 284 |
| Parties | SHOOK v. SHOOK. |
| Court | West Virginia Supreme Court |
Submitted October 28, 1931.
Syllabus by the Court.
Appellate court will not hesitate to overrule findings of trial chancellor based on testimony which appears incredible.
In wife's suit for absolute divorce, finding that wife committed adultery, precluding divorce, held not warranted under evidence.
In wife's suit for absolute divorce, evidence held to support finding that husband committed adultery, entitling wife to absolute divorce.
While findings of fact by a trial chancellor will not ordinarily be disturbed on appeal, this court will not hesitate to overrule findings based upon what appears to it to be incredible testimony.
Appeal from Circuit Court, Ohio County.
Suit by Hazel A. Shook against Henry L. Shook, wherein defendant filed a cross-bill. From a decree denying relief to both plaintiff and defendant and dismissing the suit, plaintiff appeals, and the defendant cross-assigns error.
Affirmed in part, and reversed in part, and cause remanded in accordance with opinion.
Charles J. Schuck and Hugo F. Blumenberg, both of Wheeling, for appellant.
A. E Bryant and Russell B. Goodwin, both of Wheeling, for appellee.
Hazel A. Shook brought a suit in the circuit court of Ohio county praying for an absolute divorce from Henry L. Shook, on the grounds of cruel treatment and adultery. Defendant filed an answer and cross-bill, alleging therein, among other things that the plaintiff had been guilty of adultery, and prayed for an absolute divorce, and, in event of refusal, that he be granted a divorce a mensa et thoro on the grounds of desertion. Plaintiff filed a replication to the cross-bill. After a hearing, the chancellor entered a decree denying both parties relief and dismissing the cause.
Counsel on both sides represented to this court both in brief and oral argument that the chancellor had stated in an oral opinion that he had found both guilty of adultery. Plaintiff now seeks to have that finding reversed as to her, and a divorce from the bonds of matrimony granted, while the defendant cross-assigns error, praying that the finding be affirmed as to plaintiff's adultery, but reversed as to the finding against him, and a divorce a vinculo matrimonii granted him, as well as the care and custody of their infant son.
Was the chancellor warrranted in finding the wife guilty of adultery? The definite charge in the cross-bill is "that the plaintiff on or about the -- day of June, 1930, committed adultery" with an unknown man. The proof located the place between Oglebay Farm and Wheeling, i. e., just off the Pogue's Run road, some distance above its junction with the Betheny pike. The witnesses to the alleged act--Ruckman a trader in automobiles and horses, and Crow, a trader in horses and cattle, both of Moundsville--were returning in the latter's car from a visit to the saddle club at Oglebay Farm. As they rounded a curve, about 9:30 o'clock one evening the forepart of June, 1930, they state that they saw the plaintiff and a man other than her husband in a compromising position on a blanket at a point on the creek bank some forty to sixty feet off the road to their left; that the woman and man were directly in front of a sport model Ford coupé, which was parked on the creek bank and facing the direction from which witnesses were approaching; that Crow drove on to the road junction, turned, and drove back by the place very slowly; that the parties were then standing, the woman on the left side of the car (nearest the road) and the man on the right; that, after driving some distance, Crow again turned his car and started back, but the parties had gone.
What prompted the return to the scene of the alleged adultery? Ruckman, the first to testify, stated that "Crow said that he thought he knew the car, that maybe it was Mr. Shook's car, by her being there, and wanted to see him something about trading something." However, Crow explains that he did not expect to see Mr. Shook; that his impression when they first passed was that the car was the property of a friend; that the parties were actually committing adultery; and that it was impossible to identify any one at that time. Even Ruckman's testimony on this point was that they were "lying close, pretty close together." Why was Crow so interested in identifying the car under the circumstances? And why did he apparently drive off the road to within fifteen feet of the parked car on the second, the inspection trip? No words of greeting are recorded.
Crow's evidence is unique, in that it patches up almost every apparent weakness in Ruckman's testimony. But yet it is silent regarding the topography of the road. Did it turn to the left or right? In other words, did the lights of his car sweep the position of the alleged adulterers? It would seem from the nearness to which he had to drive, in order to appease his curiosity regarding the ownership of the Ford coupé, that the parties must have been on the opposite side where none but trained eyes could have detected...
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