Arnold v. Arnold

• Decision Date: 26 May 1920
• Docket Number: No. 20217.,20217.
• Citation: 222 S.W. 996
• Parties: ARNOLD v. ARNOLD.
• Court: Missouri Supreme Court

222 S.W. 996

ARNOLD v. ARNOLD.

No. 20217.

Supreme Court of Missouri, in Banc.

May 26, 1920.

Motion for Rehearing Denied June 19, 1020.

Appeal from Circuit Court, Jackson County; Thomas B. Buckner, Judge.

Divorce action by Crystal C. Arnold against James H. Arnold. Judgment for plaintiff, and defendant appeals. Modified and affirmed.

Johnson & Lucas, Blackmer & Bundschu, and Holmes, Holmes & Page, all of Kansas City, for appellant.

McCune, Caldwell & Downing, of Kansas City, for respondent.

WHITE, C.

The action is for divorce. The petition of the plaintiff filed May 10, 1916, alleges that the plaintiff and defendant were married in Jackson county, Mo., July 19 1905; that there were born of the marriage two children, Crystal Aristo, a girl, who was at the time of filing the petition four years of age, and an infant son at that time five months of age.

The ground on which the plaintiff seeks a divorce from her husband is such indignities as to render her condition intolerable. Several acts of cruelty are alleged, the principal of which, and those supported by the strongest evidence, were the habit of the defendant to become intoxicated at frequent intervals, and the fact that he had contracted a venereal disease, which was likely to be communicated to the plaintiff.

The plaintiff testified at great length relating to the unhappy course of her married life. Her husband was drunk at their wedding, and drunk at frequent intervals during the time they lived together, often requiring medical attention on that account. The youngest child was born October 19, 1915. The plaintiff left the defendant's home on the 2d of December, 1915, when her baby was five or six weeks old, and never returned. About four months before the birth of this child the plaintiff discovered that her husband was afflicted with syphilis, an affliction which he admitted. We do not need to burden this opinion with the repulsive details regarding his condition. There was testimony that a blood test, called the Wasserman test, being applied to the defendant, showed positive, that is, unmistakable, indication of infection by him. The two children, it transpired in the evidence, had been treated for the disease; the boy because of positive symptoms indicating its presence, and the girl on account of mere suspicion that she might be infected. Defendant denied any infidelity to his wife during their marriage, and claimed that if he was affected with the syphilis it was inherited from his father. It was proved by the evidence that the defendant's father, James H. Arnold, Sr., was afflicted with locomotor ataxia and atrophy of certain optic nerves. It is said that those afflictions, particularly locomotor ataxia, were universally conceded symptoms of syphilis. He claimed that while his affliction was inherited it did not develop upon him until a short time before the birth of his last child. The expert evidence in general was to the effect that the', infection of the disease from inheritance' usually manifests itself at an early age, between birth and four or five years of age. This was offered to rebut the claim of the defendant as to the hereditary nature of the complaint. There was much expert testimony by physicians concerning whether or not the disease was curable. While it was the general opinion of the physicians that the disease, whether hereditary or acquired by contagion, was curable by the modern methods, the latest scientific discoveries and treatment, with the specific known as 606, nevertheless there was a possibility of contagion in case of pregnancy and childbirth.

There was much evidence relating to the award of alimony by the court. This award and the evidence relating to same, as well as evidence relating to other features of the case, will be more fully considered later in the opinion.

I. Appellant claims that the court committed error in refusing to make a special finding of facts under section 1972, R. S. 1909, as requested at close of the testimony. It is argued that the statute is mandatory in a suit at law, and, when requested by either party, the court commits error in refusing to make such a finding separate from its conclusions of law.

A proceeding for divorce is an action at law in that courts of general common-law jurisdiction, as distinguished from the equity side of such courts, by statute are vested with jurisdiction of such cases with all their incidents. In practice many of the features of the English ecclesiastical courts, which had authority in such cases, obtain in our courts where specific provision by statute is not made. Gilsey v. Gilsey, 198 Mo. App. 505, 201 S. W. 588; Chapman v. Chapman, 269 Mo. 063, loc. cit. 668, 669, 192 S. W. 448; Hauck v. Hauck, 198 Mo. App. 381, loc. cit. 385, 386, 200 S. W. 679. The proceeding also has some of the incidents of a criminal proceeding, in that the state is in effect a party to it. It is therefore said to be sui generis. Chapman v. Chapman, 269 Mo. loc. cit. 668, 192 S. W. 448.

The procedure in many respects is very like that which obtains in a court of equity. English v. English, 158 Mo. App. 330, loc. cit. 334, 139 S. W. 814; 9 R. C. L. p. 247. The reason why the statutory special finding of facts is not required in a case in equity applies with equal force to a divorce proceeding. Such finding is equivalent to a special verdict. Land Co. v. Bretz, 125 Mo. 418, loc. cit. 423, 28 S. W. 650. A special verdict is binding upon the court where there is evidence to support it. A trial court is not bound to make a finding in an equity case because such finding may be entirely disregarded by this court. This court must make its own investigation of the facts, and determine for itself the correctness of the finding of the trial court. Miller v. McCaleb, 208 Mo. 562, loc. cit. 574, 106 S. W. 055; Blount v. Spratt, 113 Mo. loc. cit. 54, 20 S. W. 967. In a divorce proceeding, while giving due deference to the finding of the trial court, this court is not bound by such facts as are found, but must review the evidence and make a finding of its own. Cherry v. Cherry, 258 Mo. loc. cit. 403, 167 S. W. 530; Barth v. Barth, 168 Mo. App. 423, loc. cit 426, 151 S. W. 769. It was not error for the trial court to refuse to make a special finding which would be entirely futile and fruitless so far as to relieve this court from the necessity of reviewing the evidence.

II. It is claimed by appellant that the only matters for this court to consider are the facts in relation to the disease which afflicted the defendant, because the court gave declarations of law upon every other issue which tended to show a finding in favor of the defendant. For instance, the defendant asked the court to declare the law to be that the allegation that the defendant had frequently become intoxicated was unsustained by proof or had been condoned by the conduct of the plaintiff, and the declaration was given. A similar instruction was given in relation to each other act of indignity mentioned in the petition except that in relation to the disease. However, since a special finding of facts by the trial court is not important and may be disregarded by this court, so a declaration of law may be disregarded as in an equity case. Besides, it might be inferred from the giving of that sort of declaration the trial court found the defendant was guilty of the drunkenness and the intolerable condition caused by it, but further found that it was condoned by the plaintiff, or that it was not of itself enough to create a ground for divorce. This court may consider the evidence in relation to that in connection with the other evidence in the case. The evidence is conclusive that the defendant was frequently drunk as alleged in the petition, even requiring medical attention. In fact, defendant admitted it. So, upon the entire record it is for this court to determine whether the allegations of the petition are sustained by the proof. Giving the deference ordinarily paid to a trial court in such a case, we find the evidence was sufficient to support the finding by that court that the petition was supported by the facts in relation to the indignities alleged. The only serious conflict in the testimony was whether or not the defendant's disease was curable so as to prevent infection after a period of time.

It was contended by defendant, and is argued by defendant's counsel with great earnestness, that plaintiff was afflicted with a hallucination; that she suffered with a sort of mania, syphilophobia, which affected her judgment so that she could not even accept the advice of a physician. The general finding of the trial court, however, was contrary to that contention, and the testimony of the plaintiff was clear, temperate, and indicated a normal state of mind.

III. It is further claimed by defendant that the plaintiff condoned all the offenses of the appellant by continuing to live with him after all that had occurred. This is stoutly contradicted by the plaintiff. She admits that she bore with his drunkenness and his cruelty with patience and forbearance for a long time, but that, added to his unfaithfulness, made her condition intolerable, and she never did condone the last. It is true she lived in the house with him after the discovery of his afflicte condition for four or five months, but she explained that at the time of the discovery, a short time before the birth of her child, she was obliged to take the utmost care of herself and avoid any excitement; that it was her helpless condition at the time which prevented her leaving the house, and that she left him in five or six weeks after the child was born, as soon as her condition would permit. During a part of that period the defendant was away in Oklahoma, and during the rest of the time she refused to live with him as his wife, but held aloof from him, intending to leave him whenever she was able. She left at a time when her husband was absent in Oklahoma,...