Mahone v. Mahone

LAWSON, Justice.

The appeal is from a divorce decree in favor of the wife against the husband* grounded on adultery.

In a divorce proceeding the charge-of adultery may be proved by circumstantial evidence, but the circumstances must be-such as would lead the guarded discretion of a reasonable and just man to the conclusion that the act of adultery has been committed. Gardner v. Gardner, 248 Ala. 508, 28 So.2d 559, and cases cited; Chamblee v. Chamblee, 255 Ala. 35, 49 So.2d 917. Proof which does no more than create a. suspicion is not sufficient.

We will not set out the evidence in detail. It has been given careful consideration in consultation and we are clear to the-conclusion that it is wholly insufficient under our authorities to prove adultery. The testimony as it relates to the conduct of the husband is very similar to the acts, of the wife held insufficient to show adultery in the case of Gardner v. Gardner* supra. The testimony relative to the claim of adultery on the part of the husband creates at most a mere suspicion.

The decree of the trial court is reversed and the cause is remanded.

Reversed and remanded.

LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur.