The decision of the majority a new trial must be ordered rests upon the that "the trial court was in error in ruling that the plaintiff's statement on trial that she was glad her husband had gone was the equivalent of consent to his leaving." Since to my mind the record does not establish that this was the court's ruling, I am unable to concur in the opinion. The scope of the term "consent" as used in the opinion is restricted to the plaintiff's existing state of mind, without reference to the communication thereof to the defendant. It is in this sense that I consider it. Primary meanings of consent are "acquiescence" or "approval." Webster's New International Dictionary. This being an uncontested case, it was particularly incumbent upon the trial court to fully satisfy itself that the plaintiff sustained the burden which rested upon her of proving the four essential requisites of a divorce for desertion which are recited in the opinion. One of these was "absence of consent" on her part. The court found these facts, which are established by the evidence: The plaintiff was glad that the defendant left; had he not left she would not have continued to live with him; and it did not appear that she ever made any effort to locate him after he had gone. Its conclusions were that "the subordinate facts do not permit the conclusion that it was against her wish or desire that he left," and "her happiness at his leaving leaves unestablished the third essential" of absence of consent. As I interpret the words quoted, the gist of the court's conclusion was, *Page 709 not that the plaintiff's happiness at the defendant's leaving "was the equivalent of consent," as stated in the opinion, but only that in view of the evidence establishing the subordinate facts recited above, considered in the light of the total lack of any absence of consent other than the fact that she had not left first, it was not satisfied that the plaintiff had sustained the burden of proving the essential absence of consent, that is, the absence of acquiescence or approval upon her part. In my judgment it cannot be held that as a matter of law upon this record the only reasonable conclusion the court could have reached was that the plaintiff did not consent.
I, therefore, conclude that there was no error. *Page 1