
    Ortíz v. Rodríguez.
    Appeal from the District Court of Mayagüez.
    No. 30.
    Decided June 27, 1903.
    Divorce. — Collusion op Parties.. — The testimony of two qualified and unimpeached witnesses, as to the infidelity of the defendant who abandoned her home and lived publicly in adultery with another person, constitutes sufficient evidence of adultery according to the rules of sound judgment, and acquiescence on the part of the defendant is not sufficient, in default of other evidence, to show the existence of collusion.
    Id. — Adultery.—Under section 164 of the Revised Civil Code adultery on the part of either of the parties to the marriage is sufficient ground for divorce with all of the effects prescribed by said Code.
    STATEMENT OE THE CASE.
    This is an appeal in cassation, now appeal, pending before us, taken, by Julio Ortiz, a resident of the town of La-jas, represented first by his counsel Robustiano Biaggi, and at the hearing by José Rodriguez Cebollero from the judgment rendered by the District Court of Mayagüez in a suit for divorce prosecuted by Ortiz against his wife Rosa Rodriguez. This judgment, literally transcribed, reads as. follows•
    “la the City of Mayagüez, November 26, 1902. A hearing was had in1« this action for divorce prosecuted by Julio Ortiz, an agriculturist, domiciled in Lajas, represented first by Robustiano Biaggi, and later by Antonio Man-rique de Lara against The People of Porto Rico represented by the Attorney General, and Rosa Rodriguez, a resident of Sabana Grande.
    1. — Julio Ortiz y Morales and Rosa Rodriguez y del Toro contracted a. canonical marriage in the town of Cabo Rojo, on October 31, 1894, which marriage was registered in the Municipal Court of said town on November 1, of the same year.
    2. — The said Julio Ortiz prayed for a decree of divorce from his wife, with all the legal effects thereof, alleging that six months prior to the date of his complaint, filed August 9, 1902, Rosa Rodriguez had left his home and was living in open adultery with another man in Sabana Grande, thereby violating her marriage vows, and leaving her husband and children in an unjustifiable situation, for which reason, and in view of the laws in force in this Island, and inasmuch as adultery is a ground for divorce, he prayed that a decree of divorce be granted.
    3. — The case having been referred to the Jbiscal, he offered no opposition
    thereto, and the defendant, Rosa Rodriguez, filed an answer in which she offered no objection to plaintiff’s prayer. ''
    4. — A day having been set for the proposal of evidence, and such as was proposed having been admitted, a day was set for the trial.
    5. — All the formalities of procedure having been observed in the present case, the vote on the judgment rendered was unanimous. Judge James A. Erwin prepared the opinion of the court as follows:
    I. — In order to grant a decree of divorce it is necessary that the cause thereof should be duly proven, and this should not be the result of collusion between husband and wife, nor 'should it be by the acquiescence of either of the parties for the purpose of securing the same.
    II. — The cause alleged, adultery, has not been proven to the satisfaction of the court, because one single witness testifying to his own knowledge of the fact, is not sufficient, according to the rules of sound judgment, to constitute proof, since other witnesses base their testimony to the effect that Victorio Ortiz and Rosa Rodriguez lived in adultery upon the fact of their having been seen conversing together, while defendant’s written statement may be taken as an act of acquiescence on her part for the purpose of securing the divorce.
    In view of the provisions of the Civil Code in force under the title which treats of this matter, and of General Order No. 118, we adjudge that we should declare, and do declare that this complaint does not lie, and the same is accordingly dismissed, with costs against the plaintiff, Rosa Rodriguez being therefore absolved therefrom. Thus by this óur judgment we pronounce, command and sign. — Arturo Aponte. — J. A. Erwin.- — -Luis Méndez Vaz”.
    From this judgment Julio Qrtiz, through his attorney, took an appeal in cassation for error of law, which was allowed. The record haying been forwarded to this Supreme Court and the .parties cited, the appellant appeared and was given the papers for his examination. The procedure adopted for the appeal was that prescribed by the act of the Legislative Assembly of this island establishing the Supreme Court of Porto Rico as a court of appeals, approved March 12, 1903. The record was returned by the appellant who stated that he had familiarized himself with the contents thereof. The hearing having been had the defendant, Rosa Rodriguez, having failed to enter an appearance in the Supreme Court, the Fiscal acquiesced in the appeal and asked that the judgment appealed from be reversed and that the divorce sued for by Julio Ortiz be granted.
    The record having been taken under consideration by the court, and the parties cited to appear, a day was set for rendering judgment, at which both the Fiscal of this Supreme Court and counsel for appellant were present.
    
      Messrs .Biaggi and Rodriguez Cebollero, for appellant.
    
      Mr. del Toro, Fiscal, for the People.
    The respondent did not appear.
   Mr. Chief Justice Quiñones,

after making the above statement of facts, delivered the opinion of the court as follows:

The findings of fact contained in the judgment appealed from are accepted. It appears from the certified copy of the record of the conciliatory proceedings had before the municipal judge of'Sabana Grande, between the plaintiff Julio Ortiz, and his wife, Rosa Rodriguez, nine days prior to the filing of the suit for the purpose of securing the wife’s acquiescence in the divorce prayed for by plaintiff on the ground of adultery, that she signified her consent to the granting of said divorce on the ground alleged, against which she had no objection to make.

At the trial plaintiff’s witnesses, Enrique Figueroa and Juan Irizarri, both of age'and residents of the town of Lajas, testified that they knew the parties, Julio Ortiz, and Rosa Rodríguez, and that the cause of their separation had been her infidelity, she having eloped with another man and gone to live with him as his mistress in the town of Sabana-Grande; the former of said witnesses adding in reply to a question put by the court, that the couple were married in Cabo-Rojo and after the wedding had moved to Santo Domingo, from which Island they had returned to Porto Rico and had gone to live in the town of Lajas; that from the latter place she had run away with one Yietorio Ortiz to the town of Sabana Grande where she then lived, and that he knew of the adultery because he had seen her in company with Victorio Ortiz, and the latter witness declared that he had seen them talking together, for which reason he said they were living in adultery, and that he had known the married couple some seven or eight years, having made their acquaintance in Santo Domingo.

The statements of the two witnesses, Enrique Figueroa and Juan Irizarry, both of age and without legal disqualification, which agree as to their knowledge of the wife’s infidelity, for having abandoned her husband’s house and gone to live publicly in adultery with another man in a town not her husband’s place of residence, which statements are confirmed by the wife’s acquiescence in the prayer for divorce, both at the proceedings to avoid litigation and in her written answer to the complaint, constitute sufficient evidence of the adultery charged by the husband against the wife, according to-the rules of sound judgment, for, aside from the gravity of the charge,' which the wife in all likelihood would have repudiated had it not been absolutely true, there is no other reason even to suspect the existence of a fraudulent agreement between husband and wife for the purpose of securing the divorce.

Under article 164 of the revised Civil Code, adultery on the part of either of the parties to the marriage is sufficient cause for divorce with all the attending consequences provided for by said Code.

In view of articles 163, 164, 165, 173, 175, 1343 and 1344 thereof, we adjudge that we should reverse, and do reverse, the judgment appealed from, and declare that the action for divorce prosecuted by Julio Ortiz against his wife Rosa Rodriguez is well founded and consequently the matrimonial bonds existing between both spouses are dissolved, the children had during the marriage to continue under the custody and paternal authority of the plaintiff, Julio Ortiz, and the division of all property and effects between the parties to the marriage being decreed to take effect in the proper manner; without special imposition of costs.

Justices Hernández, Figueras and MacLeary concurred.

Mr. Justice Sulzbacher did not sit at the hearing of . this case.  