(dissenting). It seems to’ me that the only possible ground for the reversal of the judgment would be the refusal of the trial court to give requested instruction No. 7 above quoted. The first sentence thereof is not a correct statement, as has been pointed out in the majority opinion. Undoubtedly the remainder of such' proposed’ instruction correctly stated an abstract principle of law, and it seems to' me that it was applicable tO' the facts of this case. But has the defendant been prejudiced by its •refusal ?
*459The trial court did instruct the jury as follows upon the question of criminal conversation:
“I might say to you, upon this question of adultery or sexual intercourse, and in fact upon either branch of the case, that it is not sufficient to create a suspicion. The evidence must be s-uch that it would lead a just and considerate man to the conclusion that the defendant has been guilty of one or both of these acts. Of course, as I said, it is no mere guess or surmise. There must be some substantial evidence, and' the minds of the jurors must be substantially satisfied, that he has committed either one or both of these acts, before you would 'be warranted in giving the plaintiff damages.”
In view of that instruction, I am .not prepared to say that the refusal to give requested instruction Nb. 7 was prejudicial. It seems to me that the essence of the proposed instruction was impressed upon the minds of' the jurors by the instruction given, and I .therefore think the judgment should be affirmed.
McCO'Y, P. J., concurs in the views of Justice GATES.