Allen v. Allen
| Decision Date | 31 May 1933 |
| Docket Number | No. 22020.,22020. |
| Citation | 60 S.W.2d 709 |
| Court | Missouri Court of Appeals |
| Parties | ALLEN v. ALLEN. |
Appeal from St. Louis Circuit Court; Clyde C. Beck, Judge.
"Not to be published in State Reports."
Action for divorce by John H. Allen against Stella C. Allen. From an order granting defendant a new trial after decree for plaintiff, plaintiff appeals.
Affirmed.
Gus O. Nations, of St. Louis, for appellant.
Gilbert Weiss, of St. Louis, for guardian ad litem.
BENNICK, Commissioner.
This is an action for divorce which was brought by the husband, Dr. John H. Allen, a practicing dentist in the city of St. Louis. Following the rendition of a decree of divorce in his favor, defendant's motion for a new trial was sustained upon the ground of error in the admission of evidence; and from the order so entered, plaintiff has duly appealed.
The petition alleged the marriage of the parties on December 30, 1909, and that they had lived continuously together from that date until May 19, 1926. It was also shown that two children had been born of the marriage, a son nineteen years of age, and a daughter seventeen years of age, at the time of the institution of the action on September 22, 1930.
As his principal ground for divorce, plaintiff alleged indignities such as to render his condition in life intolerable, the precise charge in his petition being as follows: "During the five years last past defendant has refused to live with plaintiff as plaintiff's wife and has frequently told the children of plaintiff and defendant that she does not love plaintiff and that she will never live with him again as his wife, and that during all the time after the second year of the married life of plaintiff and defendant, defendant repeatedly told plaintiff, their children, relatives and friends that she did not love him and did not want to live with him as his wife."
As another and further ground for relief, plaintiff charged that defendant, on May 19, 1926, had abandoned him without reason or excuse, and during all of the time since that date had absented herself, and refused to live with him.
Thereafter defendant entered her appearance, but filed no answer; and upon default and inquiry granted, plaintiff was awarded a divorce, with the custody of the two minor children of the marriage.
Following the entry of such decree, and some eight days later, Dr. Curtis H. Lohr, hospital commissioner of the city of St. Louis, and as such in charge of the city sanitarium, entered his appearance as amicus curiæ in the cause for the purpose of presenting to the court certain facts appertaining to the rights of defendant and not theretofore brought to the attention of the court.
In his suggestions so filed, Dr. Lohr disclosed that defendant was of unsound mind, and was then confined in the city sanitarium pursuant to a certificate of insanity executed by two physicians on July 23, 1918, and on the application of even date of plaintiff himself, who had entered into a contract with the city for the payment of the expenses of her maintenance; that she had been continuously confined in said institution from the date of her admittance on July 26, 1918, until January 11, 1925, when, at plaintiff's request, she was discharged on probation to him; that on May 19, 1926, she was returned to the sanitarium by plaintiff, and a new contract for her support executed by him; and that she had been continuously confined in the sanitarium since that date.
Upon the filing of such suggestions, the decree theretofore entered was set aside upon the court's own motion for the presentation of further evidence. Alias summons was ordered to issue; and upon the court's own motion, a guardian ad litem was appointed for defendant.
Thereafter an answer was filed by the guardian ad litem, setting up the facts as to defendant's confinement in the sanitarium; that the court should require strict proof of the allegations in the petition; that whatever indignities might have been committed had been occasioned by the mental disability of defendant; and that plaintiff, by resuming marital relations with defendant upon her parole from the sanitarium, had condoned all the acts alleged as the basis for his cause of action.
A trial was had upon evidence adduced, and the court again entered its decree, awarding plaintiff a divorce, with the custody of the two children. Following the sustaining of defendant's motion for a new trial, plaintiff's appeal to this court has come as indicated.
The evidence for plaintiff disclosed that defendant's professed antipathy towards him dated back to approximately the time of the birth of the children, culminating in her being placed in the city sanitarium at the time and under the circumstances heretofore indicated. Not only did the two examining physicians make affidavit preliminary to defendant's admittance into the sanitarium that they had examined her and believed her to be insane and a proper patient to be sent to an institution, but plaintiff himself also made an affidavit on the same occasion that to the best of his judgment she was insane. The facts as to her commitment to the sanitarium, her subsequent parole therefrom, and her return to the sanitarium were admitted; nor was there any dispute between the witnesses regarding defendant's apparent dislike for plaintiff.
However, it unmistakably appears from the record that plaintiff's action was not begun in good faith in the sense that he believed defendant's mental condition to have been such that she should be held to account for her acts alleged to have amounted to indignities, but rather that it was instituted upon the theory that if knowledge were brought home to her that she was divorced from plaintiff, her nervous tension might be relieved. Plaintiff's own testimony about the matter was as follows:
It may be stated in passing that not only did plaintiff's own testimony disclose a divergence of opinion among medical men as to whether the granting of a divorce would be beneficial to defendant, but also that Dr. Kohler, who was personally in charge of defendant's case at the sanitarium, testified in opposition to the idea.
But considering the case from the stand-point of the ground assigned by the lower court for the granting of a new trial, which was the alleged erroneous admission of evidence for plaintiff during the course of his direct examination, we find the incident in question recorded in the record as follows:
We agree with the lower court that the testimony regarding defendant's statements to plaintiff was erroneously admitted. It will be observed...
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