Barth v. Barth

• Decision Date: 03 December 1912
• Parties: BARTH v. BARTH.
• Court: Missouri Court of Appeals

151 S.W. 769

168 Mo. App. 423

BARTH v. BARTH.

St. Louis Court of Appeals. Missouri.

December 3, 1912.

1. DIVORCE (§ 184) — APPEAL — REVIEW — FINDING OF FACTS.

The Supreme Court in divorce cases will review the evidence and come to its own conclusion as to the facts, to see that a union was not dissolved on slight testimony nor for trivial cause, although great deference will be paid to the conclusions of the trial judge.

2. DIVORCE (§ 55) — CONSTRUCTION OF STATUTES — COMPARATIVE FAULT — "INJURED PARTY."

Rev. St. 1909, §§ 2370, 2372, allowing a divorce to the "injured party," are given the same construction as Rev. St. 1845, c. 53, allowing the "innocent and injured party" a divorce; and where both parties are in fault the court will not attempt to find which is the most in fault, but will award neither the relief sought.

For other definitions, see Words and Phrases, vol. 4, p. 3614.]

3. DIVORCE (§ 130) — EVIDENCE — FAULT OF BOTH PARTIES.

In an action by a husband for divorce on the ground of indignities rendering his condition intolerable, evidence held to show that he was not an injured party, as required by Rev. St. 1909, §§ 2370, 2372, allowing such a party a divorce; he having been also guilty of improper treatment.

Appeal from St. Louis Circuit Court; Edwin W. Lee, Judge.

Action by John Barth against Katie Barth. Judgment for plaintiff, and defendant appeals. Reversed and dismissed.

John B. Dempsey, of St. Louis, for appellant. Edward W. Foristel, of St. Louis, for respondent.

REYNOLDS, P. J.

The respondent here instituted an action for divorce against his wife, the appellant, on the 19th of May, 1910. It is alleged in the petition that the parties were married in the city of St. Louis, in May, 1895, and lived together as husband and wife until April, 1910. Following the usual averment that during all of the time plaintiff had treated defendant with kindness and affection, plaintiff charges that defendant offered him such indignities as to render his condition intolerable. The indignities set out are that after the first year of the marriage defendant developed a violently jealous disposition and on divers occasions accused plaintiff of infidelity; that after the third year of the marriage on numerous occasions, "the exact dates of which are unknown to this plaintiff, which plaintiff believes to have been about once each month," defendant quarrelled with plaintiff and during the quarrel used foul and profane language toward him, on numerous occasions breaking various articles about the house and throwing dishes at plaintiff. Averring that plaintiff was a merchant engaged in the retail meat and provision business, it is charged that on divers occasions too numerous to mention, defendant would appear at plaintiff's place of business and without reasonable cause abuse the women patrons who happened to be present in plaintiff's place of business at the time and would accuse them of being intimate with plaintiff; that during the second year of the marriage, "the exact date being unknown to plaintiff," defendant without reasonable cause and while in a violent fit of temper, threw a meat axe through the front window of plaintiff's place of business; that thereafter during the year 1904 plaintiff was compelled to dispose of his business by reason of the habits, acts and practices of defendant as aforesaid. It is further averred that during the year 1909, a sister of defendant came to live with plaintiff and defendant, and defendant, without reasonable cause, accused plaintiff of being intimate with the sister; that for a period of three years next before the filing of the petition, "on occasions too numerous to mention," defendant, in the presence of others, threatened to kill plaintiff, on one occasion threatening to cut plaintiff's throat while asleep; that during the month of March, 1910, defendant was continually quarrelling with an employé of plaintiff and on one occasion threatened to throw carbolic acid in his face; that on the 15th of March, 1910, defendant at the breakfast table and in the presence of the children of plaintiff and defendant, without reasonable cause, accused plaintiff of being intimate with some Spanish ladies who lived in the neighborhood; that thereafter, on or about the 1st of April, 1910, defendant "forbids the women patrons of plaintiff to talk to plaintiff or to come into his place of business on any purpose." Stating that by reason of the habits, acts and practices of defendant, as before set out, he has suffered great anguish of mind and cannot live in peace and happiness with defendant and that there were born of the marriage two children, John aged fourteen, and Harry aged twelve, and that the defendant is an unfit person to have the care and custody of the children, plaintiff prays for divorce and that he be awarded the care and custody of the children, the petition containing the proper averment of residence in this city and state.

Admitting the marriage and birth of the children, defendant by her answer denies every other allegation in the petition.

The trial of the cause was quite lengthy and terminated in a finding and judgment in favor of plaintiff, the court also awarding him the custody and control of the children and adjudging the costs of the proceeding against defendant.

We have read all the testimony as presented by the abstract of the appellant with very great care. While conceding that very great deference is to be paid to the conclusions of the learned trial judge on the evidence in a case of this character, he having the witnesses before him and hearing their testimony and being able to determine from the manner of giving the testimony and appearance of the parties and witnesses, the weight to be given to it, the duty is imposed upon us by the law to pass on the evidence and to determine the case on our own view of that evidence as presented to us by the record, a duty which we cannot shirk, even if we had the disposition to do so. This rule of decision was very distinctly announced by our court in Torlotting v. Torlotting, 82 Mo. App. 192, and, while stating the rule with great distinctness the decision of the trial court was not there followed, a divorce which it had adjudged in favor of the husband as against the wife being set aside and the case dismissed. It is true that that was done more on the application of the principles of law to the facts than on the facts...