Bethel v. Bethel
| Decision Date | 03 March 1914 |
| Citation | 164 S.W. 682,181 Mo.App. 601 |
| Parties | MARY EFFIE BETHEL, Appellant, v. JOHN J. BETHEL, Respondent |
| Court | Missouri Court of Appeals |
Appeal from Audrain Circuit Court.--Hon. James D. Barnett, Judge.
AFFIRMED.
Judgment affirmed.
Clarence A. Barnes for appellant.
(1) Divorce is a legal right, the granting or withholding of which is in no way dependent on the discretion of the trial court. Morris v. Morris, 60 Mo.App. 86; Parnell v. Parnell, 2 Phill. 158; Crump v. Morgan, 38 N.C. 91; Deschodt v. Deschodt, 59 Mo.App. 102; Raney v. Raney, 128 Mo.App. 167. (2) When defendant charged his wife with infidelity and adultery he was guilty of extreme cruelty and of offering such indignities to plaintiff as rendered her condition intolerable as a matter of law, and under the evidence in this case, as a matter of law and fact. Allen v. Allen, 31 Mo. 479; Clinton v. Clinton, 60 Mo.App. 296; Tripp v Tripp, 78 Mo.App. 413; Strahorn v. Strahorn, 82 Mo.App. 580; Lewis v. Lewis, 5 Mo. 278; Rose v Rose, 129 Mo.App. 175; Sweikert v. Sweikert, 108 Mo.App. 477; Dimmitt v. Dimmitt, 167 Mo.App. 94; Kelly v. Kelly, 18 Nev. 49; Cooper v Cooper, 99 N.E. 782; Wickland v. Wickland, 126 P. 507. (3) The court's finding that the defendant was mentally unaccountable for his slanderous charges of infidelity was the finding of a matter outside of the pleadings and of the record, and of which we believe there was positively no evidence. Insanity arising after marriage is not a ground for divorce, unless it is so provided by statute. 14 Cyc. 1623; Hamaker v. Hamaker, 18 Ill. 137; Tiffany v. Tiffany, 84 Iowa 122; Powell v. Powell, 18 Kan. 371; Pile v. Pile, 94 Ky. 308. Insanity is not an exception to the right to divorce on any of the grounds stated in the statutes of Missouri, and can only be made an exception under the guise that the indignities or cruel and barbarous treatment required a sane intention behind them, which we do not believe to be the rule in Missouri. So far as we can learn that point has never been decided in this State, nor do we believe it will be necessary to decide it in the case at bar for the reason that the trial court did not find the defendant to be insane. (4) The trial court not having found the defendant to be insane, but finding him to be a nervous wreck, and of which we do not believe there is any evidence, brings us to the last point in the case, to the effect that eccentricity and mental derangement of the defendant, if any, not amounting to insanity, did not excuse his acts of cruel and barbarous treatment and his rendering the condition of plaintiff intolerable, if the defendant was capable of understanding the nature and consequences of his acts at the time they were committed. McGrady v. McGrady, 48 Mo.App. 668; Avery v. Avery, 33 Kan. 1; Smith v. Smith, 33 N.J.Eq. 458; Duvale v. Duvale, 54 N.J.Eq. 581; Scotland v. Scotland, 4 Wash. 118.
E. S. Gantt for respondent.
(1) In divorce cases there are three parties to the action, the plaintiff, the defendant and the public. Moore v. Moore, 41 Mo.App. 176; McMakin v. McMakin, 68 Mo.App. 57. The court is not limited by the defenses pleaded in defendant's answer. If no answer had been filed the plaintiff would have been compelled to make out a case. Wagner v. Wagner, 6 Mo.App. 572; Owen v. Owen, 48 Mo.App. 208; Nichols v. Nichols, 39 Mo.App. 291. (2) If the defendant was a nervous wreck and mentally unaccountable for his words and actions and charges against his wife, she was not entitled to a divorce. Franklin v. Franklin, 53 Kan. 143; Baker v. Baker, 82 Sud. 156; Wray v. Wray, 19 Ala. 522; Broadstreet v. Broadstreet, 7 Mass. 474; Nichols v. Nichols, 31 Vt. 328; Cohn v. Cohn, 85 Cal. 108; Tiffany v. Tiffany, 84 La. 122; Wertz v. Werts, 43 La. 534; Powell v. Powell, 18 Kan. 371; Sapp v. Sapp, 71 Tex. 348. (3) A decree granting or refusing a divorce on evidence which is conflicting will not be disturbed. Stevenson v. Stevenson, 29 Mo. 95; Endsley v. Endsley, 89 Mo.App. 596; Maget v. Maget, 95 Mo.App. 6; Lawlor v. Lawlor, 76 Mo.App. 637; Schierstein v. Schierstein, 68 Mo.App. 205; Adkins v. Adkins, 63 Mo.App. 351; Griesdieck v. Griesdieck, 56 Mo.App. 94. And this is especially true where the decree refuses the divorce. Ashburn v. Ashburn, 101 Mo.App. 365; Coe v. Coe, 98 Mo.App. 472. (4) An applicant for divorce must be an innocent and injured party. Morrison v. Morrison, 62 Mo.App. 299; Nagle v. Nagle, 12 Mo. 53. If both plaintiff and defendant were ill-tempered, harsh and faultfinding a divorce should be denied. Holschback v. Holschback, 134 Mo.App. 247; Wells v. Wells, 108 Mo.App. 88.
This suit proceeds at the instance of the wife, plaintiff, for divorce. Besides entering a general denial to the averments of the petition, the defendant husband filed a cross-bill and prayed that the divorce be granted to him. After hearing the evidence and arguments, the court found the issue for defendant, dismissed plaintiff's petition and dismissed, as well, defendant's cross-bill. From this judgment dismissing her petition, plaintiff alone appeals.
It appears the parties were married in 1883 and had lived together as husband and wife for about twenty-eight years. Seven children were born of the marriage and six of them still live. Both plaintiff and defendant appear to be hard-working people but in moderate circumstances only. During all of the years of their married life they lived on different rented farms. Plaintiff is a large, robust and forceful woman, while defendant appears to be a small and emaciated person and rather timid. The evidence tends to prove the parties got along well enough together until some seven or eight years ago when dissensions arose between them, and it does not appear that the defendant was entirely at fault. The record abounds with evidence to the effect that the wife mistreated the husband, and it abounds with evidence, too, tending to prove that he possessed considerable temper, was quarrelsome and mistreated his wife at times. It appears defendant has been suffering with poor health for some six or eight years and that he is exceedingly nervous. Besides being small of stature and emaciated, defendant is very deaf. This affliction came upon him in early life and has gradually increased during all of the years.
Plaintiff charges that defendant was guilty of such indignities toward her as to render her condition in life intolerable, and also cruel and inhuman treatment of her on his part. The evidence for plaintiff tends to prove that defendant frequently became enraged and threatened to beat her. On several occasions he took a shotgun and kept it with him in his room, threatening to shoot plaintiff, etc. It is said defendant would curse plaintiff at times, refuse to let her drive his horses and go to church, saying she was "running after" the preacher. Plaintiff says, too, her husband struck her several times with his fist in the mouth and nose and otherwise mistreated her.
On the part of defendant, it is denied that he made these assaults upon plaintiff, and his evidence tends to prove that she assaulted and beat him upon numerous occasions. The evidence amply reveals that plaintiff is the stronger person physically and the more forceful character of the two. She admits having taken a poker away from defendant on the occasion of one quarrel, and it is quite apparent that she was at least equal in point of physical strength to her husband and, no doubt, amply able to care for herself in the ordinary combat which seems frequently to have occurred. One of defendant's witnesses, a hired hand who had lived in the family for some time, says he saw plaintiff slap her husband's "jaws" on several occasions and one time she hit him on the head with a stick of wood. A neighbor, who lived about forty yards distant, testified that on several occasions he heard defendant calling for him to come to the rescue as he was being "beaten up" by his wife. This witness and others, too, testified to seeing defendant with a black eye, a bruised face, and bruises about his arms immediately after such melees had taken place and that defendant had stated to them he received such injuries at the hands of the plaintiff, his wife. The evidence altogether suggests with great force that plaintiff and, indeed, her elder children, had become tired of defendant as a member of the household and was anxious that he should leave. There is evidence, too, and the attendant facts and circumstances seem to corroborate it, tending to prove that plaintiff finally rented the farm on which they lived in her own name and told defendant to leave. At any rate, he left on the first day of March, the commencement of the new term of lease, and it is quite clear that plaintiff had arranged the matter of renting the farm a few days before. Plaintiff says that defendant left the home on his own account, while he says she ordered him to do so, and, as before said, other facts and circumstances in the record tend to corroborate defendant's theory with respect of this matter. Upon leaving, defendant went to the home of his married daughter, and shortly she or her husband notified him to leave there, which he did. There can be no doubt that upon these facts the court very properly denied plaintiff a divorce and dismissed the bill.
But the question in the case relates to certain charges of infidelity which defendant made concerning his wife. It appears that one Jones, who rented a farm in the neighborhood, boarded with them and defendant became jealous of him. He repeatedly charged his wife with being intimate with Jones and insisted that Jones should leave, but she did not send him away for some time thereafter. It appears,...
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