I dissent. While the testimony does not make out a strong case, I think there was sufficient to sustain the findings of the trial court. There is evidence by plaintiff set out in the majority opinion which, though contradicted by defendant, tends to show defendant continually accused plaintiff of having improper relations with others and that this conduct rendered the continuance of the marriage relation impossible and intolerable and tended to defeat the legitimate objects of marriage within the meaning of section 5738, Revised Codes. While the testimony was in the nature of conclusions, I think it sufficient to sustain the ultimate fact in question so as to make a fact issue for the court. This being so, we should not disturb the findings and decree *Page 385 since the trial court was in a better position than are we to pass upon conflicting evidence.
Rehearing denied April 17, 1940.