¶1 dissenting:
¶2 I am unable to agree with the result reached by the majority opinion in this case. The facts recited in the opinion do not prove adultery by the proof required under the decisions of this court. The facts set out in the opinion of the court are characterized as proof of an adulterous disposition. This does not constitute adultery. One of the instances testified to is stale with age, and the other has no evidence whatever to support it. The man Mahoney worked for the appellee for two or three years in the early part of the 1940’s. The only testimony supporting 3 the charge of this man is that of the husband, and yet, he continued to live with his wife for some four or five years after without protest, and did not discharge the hired man. This makes his testimony highly 'improbable. And besides, the facts narrated by him do not show adultery, but at the most a lack of modesty. There is absolutely no proof of adultery with the man Mills. Pour people were present in the party, and all of them testified that it did not occur.
¶3 The law requires, and has required for a great many years, that because of the effect of a decree finding adultery upon the general public, and other innocent members of the family, adultery is never presumed, but must be proved so no doubt can be left in the mind of a reasonable person that the act of adultery was committed. (Blake v. Blake, 70 Ill. 618; Hoef v. Hoef, 323 Ill. 170.) The cases cited by the court in its opinion are all cases in which the proof was ample, as for instance Cooke v. Cooke, 152 Ill. 286, and Daily v. Daily, 64 Ill. 329, which were both cases in which the offending party was seen several times in a house of ill-fame, which in itself in many States is regarded as sufficient proof.
¶4 The opinion thrusts aside the testimony of the mother and child as being unworthy of belief, and yet I can see but little difference between the weight of their testimony and that of the appellee, who was by no means an admirable character, by his own admission.
¶5 I concede that the attitude of the appellant in this case was not a model to be followed, but still the law requires that the proof of adultery be established by a preponderance of the evidence before a decree can be granted upon that ground. I find no evidence in the record which establishes the charge in the manner required by the authorities cited above.
¶6 Mr. Chief Justice Murphy joins in the foregoing dissenting opinion.