Taft v. Taft

• Decision Date: 29 August 1907
• Citation: 80 Vt. 256,67 A. 703
• Parties: TAFT v. TAFT.
• Court: Vermont Supreme Court

67 A. 703

80 Vt. 256

TAFT

v. TAFT.

Supreme Court of Vermont. Franklin.

Aug. 29, 1907.

Exceptions from Franklin County Court; John H. Watson, Judge.

Petition for divorce by Winona L. Taft against Russell W. Taft. There was a decree granting the divorce, and the petitionee excepts. Affirmed.

Argued before ROWELL, C. J., and TYLER and MUNSON, JJ., and TAYLOR, Superior Judge.

C. G. Austin & Sons, for petitioner. R. W. Taft and V. A. Bullard, for petitionee.

TYLER, J. Petition for divorce for alleged adultery. Petition sustained, and bill granted. Exceptions by petitionee, for that the decree was based wholly upon circumstantial evidence, and that all the evidence produced by the petitioner did not warrant the decree.

1. That adultery may be proved by circumstantial evidence, both in civil and criminal cases, is well settled. The only general rule that can be laid down upon the subject is that the circumstances must be such as will lead the guarded discretion of a reasonable and just man to the conclusion that the alleged act was committed. 2 Greenl. Ev. § 40. In 2 Bish. Marr. & Div. 1357, this rule is given: "Though no witness testifies to seeing the adultery, if there are proven facts consistent with the theory of its commission and inconsistent with any other theory, and if they create in the minds of the triors the degree of affirmative belief required by law that it was committed, the evidence will be adequate." Kizer on Marr. & Div. § 70. Bishop says, in volume 2, § 619, that, when a criminal disposition by both parties and an opportunity to commit the act have been shown, adultery may be inferred. See State v. Brink and Gibbs, 68 Vt. 659, 35 Atl. 492. In the present case the court found that adultery had been committed on two occasions, and, evidence having been introduced tending to show other occasions when the parties were alone together in the room described, the court remarked that evidence as to other occasions was admissible, whether before or after the acts proved. We assume that from this evidence the court found an adulterous disposition, as it was admissible for that purpose.

2. It appears that all the evidence tending to show that the parties were in a certain room together on occasions came from per sons who had been employed by the petitioner as private detectives. The rule as to the weight to be given to the testimony of per sons thus employed is well stated in Blake v. Blake, 70 Ill. 618: "The testimony of a private detective hired by the husband to watch his wife, with a view to learning facts upon which to base a suit for divorce, will be regarded with much suspicion, especially where it does not appear that his pay does not depend upon the successful effect of his evidence." The other cases...