(dissenting).
From my careful study of the record herein I am unable to conclude that the evidence adduced preponderately discloses the commission of adultery on the part of the defendant.
Appropriate to this cause are the following observations contained in Hayes v. Hayes, 225 La. 374, 73 So.2d 179, 180: " * * * While it is well settled that the unfaithfulness of a spouse may be established by indirect or circumstantial evidence forasmuch as, in the nature of things, it can seldom be proven by direct or positive •evidence, [cases cited] the facts and surrounding circumstances must be such as to lead fairly and necessarily to the conclusion that adultery has been committed as alleged in the petition. [Cases cited.] In other words, the circumstantial proof in these •cases must be so convincing as to exclude •any other reasonable hypothesis but that •of guilt.” In my opinion the requirements thus enunciated, for warranting a holding that adultery has been established, are not satisfied in the instant cause.
Applicable here also is this comment contained in Savin v. Savin, 218 La. 754, 51 So.2d 41, 46: “* * * True, the mass of circumstantial evidence under consideration causes us to entertain a suspicion of her guilt; but * * * that alone cannot serve as the basis for a judgment of divorce and a denial of the mother’s right to the care and custody of her child.”
I respectfully dissent.