John Albert Padykula vs. Zelia Katherine Marchewska Padykula (and a companion case), 347 Mass. 768

At the close of the libellant’s evidence on John Padykula’s libel for adultery, the libellee moved to dismiss. The judge granted the motion saying “Based on all the evidence . . . [for] the libellant, even if I believed it, I see no situation of adultery. Tour own investigator saw nothing but kissing and hugging in a public place.” J ohn relies particularly on the testimony of the investigator that he had observed the libellee and the corespondent in a compromising position in an automobile late in the evening parked in a dark area of a parking lot of a roadside restaurant.

We assume that this testimony justified an inference which, with other testimony, would have supported a finding of adultery. Thayer v. Thayer, 101 Mass. 111, 113. Mountford v. Mountford, 179 Md. 697 (no opinion printed; for opinion see 19 Atl. 2d 178). The judge’s statement, however, shows that he did not draw the inference. We cannot hold that his failure to do so was plainly wrong. In the absence of the inference it was not error to rule that J ohn had not sustained the burden of proof. See Thayer v. Thayer, 101 Mass. 111, 113; Colby v. Colby, 337 Mass. 774.

There was evidence of John’s cruel and abusive treatment. The decree of divorce on Zelia’s cross libel for cruel and abusive treatment and the decree dismissing John’s libel for adultery are affirmed.