DISSENTING OPINION
By KUNKLE, J.I am unable to concur with my associates in the conclusion at which they have arrived.
No attempt will be made in this brief statement to quote from the testimony, as the very exhaustive briefs which have been filed by counsel disclose that they are thoroughly familiar with the record in this case.
Defendant in error, for a first cause of action, in his cross petition, states:
“For his first cause of action, this defendant says plaintiff has been guilty of gross neglect of duty toward defendant in that on or about the1 13th day of August, 1931, plaintiff left this defendant and has since failed and refused to live with him: that at the time of such leaving and for many years prior thereto this defendant had been in poor health, constantly under the care of physicians, and is still in poor health, and notwithstanding the condition of defendant’s health and his need for the care, helpfulness and administration of the plaintiff, plaintiff, without cause, left and has since refused to live with this defendant, as aforesaid.”
There is ample evidence in the record which, if believed, supports the allegations of the first cause of action in the cross petition of defendant in error. It is apparent that the trial court believed the portion of the testimony which supports such allegations. The trial court was in a better position to determine the weight to be given the testimony of the different witnesses upon this subject, and also to determine the credibility of their testimony than is a reviewing court. It is suggested that these allegations, even if proven, constitute wilful absence but not gross neglect of dutj’', and that such wilful absence would have to continue for three years before a cause of action existed. The testimony discloses that at the time the plaintiff below, being* the plaintiff in error herein, left the defendant below, the defendant in error herein, that he, the defendant, was in a serious physical condition; that she thought the defendant needed her care and protection is disclosed in various parts of her own testimony; that during these attacks to which he became subject he was at times unconscious.
This is not a case of neglect by a wife leaving a husband in good health but is a case of a wife leaving a husband in need of constant care and attention, I cannot concur in the conclusion that the facts *378proven do not constitute gross neglect of duty. This conclusion is reached after an examination of the authorities cited lay counsel as well as an investigation of this general subject outside of such authorities. In “Words and Phrases Judicially Defined” the following discussion of the subject of gross neglect of duty is found.
“The term ‘Gross Neglect of Duty’ which is a cause of divorce, is indefinite, and it is difficult to lay down any general rule by which every case can be determined to be within or without its limits. Each case must be examined by itself. It is not mere neglect of marital' duty. The adjective ‘Gross’, whatever may be said of it as a mere term of vituperation in other relations, it here has legal force as descriptive of the conduct of the party neglecting duty. There must not only be a default, but the default must be attended with circumstances of indignity or aggravation.”
This appeals to me as being a sound and reasonable definition of the term “Gross Neglect of Duty.” Prom a, consideration of the record, assuming that the facts testified to by defendant in error and certain of his witnesses are accepted as true, we cannot escape the conclusion that a wife leaving her husband when he was in a physical condition such as is detailed in the record, constitutes a default upon her part attended by aggravating- circumstances, and therefore constitutes gross neglect of duty upon her part.