Bevier v. Bevier

• Decision Date: 07 November 1939
• Docket Number: No. 25101.,25101.
• Parties: BEVIER v. BEVIER.
• Court: Missouri Court of Appeals

132 S.W.2d 1044

BEVIER v. BEVIER.

No. 25101.

St. Louis Court of Appeals. Missouri.

November 7, 1939.

Appeal from Circuit Court, Washington County; Will H. D. Green, Special Judge.

"Not to be published in State Reports."

Divorce action by Helen Bevier against W. Fred Bevier. From the judgment, the plaintiff appeals.

Partly reversed and remanded, with directions, and partly affirmed and remanded, with directions.

Charles H. Richeson, of Potosi, for appellant.

John Eversole, of Potosi, for respondent.

BECKER, Judge.

This is an action for divorce instituted in the Circuit Court of Washington county by the wife, appellant here, based on statutory grounds of general indignities such as to render her condition intolerable. The husband filed an answer admitting the marriage, the birth of three children born of the marriage, and denied each and every other allegation contained in plaintiff's petition, but filed no cross-bill. On a hearing the court ordered that plaintiff's petition be dismissed. After an unavailing motion for new trial plaintiff appealed. Thereafter, upon the wife's motion for alimony and suit money to defray the expenses of her appeal to this court, the court allowed her the sum of thirty dollars per month for the support of the children born of the marriage but did not allow her any sum to prosecute her appeal, or for attorneys' fees. The wife filed a motion for new trial of her motion for alimony and suit money pending the appeal, which was overruled and she took an appeal in due course.

The record discloses that plaintiff and defendant were married on June 24, 1926, and lived together thereafter as husband and wife until August 31, 1937. Plaintiff herself testified that three children were born of the marriage, and that at the time of the trial Fritz was six years of age, Mary Ellen eight years of age, and Jo Anna ten years of age; that she and her husband operated the "Log Cabin Inn," a tavern which was located on forty acres of land, upon which they had built, besides the main tavern building, five cabins, a pond, and a swimming pool; that on the night of August 31, 1937, "after we had gone to bed we got into an argument and defendant got mad and he started drinking and he would cuss awhile and drink again and walk the floor and he raved around there for about an hour and a half, and then he came in and got his clothes on, and went to the back door and got a bucket that I used in mopping; then he went out in front where the gasoline pump was, and came back to the rear of the house next to the bedroom and threw something from the bucket on the roof of the house, to make me think it was gasoline; then he lit seven or eight matches and flipped them over toward it, and kept talking to himself about what he was going to do; that I needn't think I was going to get any of his property; that he would fix it so that it would be a pile of ruins before morning. I jumped up and put on my dress over my nightgown, and grabbed the little boy out of his bed and got the other two children and ran up to Mrs. Wood's." Plaintiff further testified it was about a quarter to one in the morning when she got to Mrs. Wood's home, which was about a quarter of a mile distant. Plaintiff testified that at no time thereafter did she return to her home but filed suit for divorce September 29, 1937.

Plaintiff further testified that in September, 1927, at a time when she was pregnant, defendant threatened to kill her if she did not get rid of this unborn child; "he said he was not going to be called daddy by my bastard kid"; that he accused plaintiff of being pregnant by a man other than himself; that these threats and accusations were heard by Mrs. Marple Wilson who was employed by them at the time. Plaintiff testified that on various occasions defendant called her vile names; that defendant would not speak to her for two or three weeks at a time, during which periods he would speak to her "only when some one was around"; that in December, 1930, plaintiff and her sister had gone to St. Louis and while there had purchased a coffee cake, which they brought home; that her husband accused her of putting poison in the coffee cake though she and her sister ate the coffee cake with no ill effects; that in September, 1932, when there was a meeting of a club of young folks at their tavern "defendant got mad and cussed her and ordered her from the place and told her never to come back again and that on this occasion he called her vile names"; that the action of defendant caused all of the people who came to the party to go home; that on the morning after the party, while packing her effects preparatory to leaving defendant, the defendant threatened to blow her brains out if she went home; "when I started to pack he said he would fill me so full of holes `your mother will not know you,' if I went home." Plaintiff testified that in January, 1935, at a time when she was sick with bronchial pneumonia, the doctor ordered her to stay in bed two weeks; that defendant neglected her throughout her illness and failed and refused to give her the medicine. On another occasion, in October, 1936, when plaintiff was ill for about a week, defendant became angered over the doctor ordering her to bed and said that "the doctor did not know what he was talking about," and in June, 1927, when she was ill, and on her doctor's advice had consulted a specialist in St. Louis, who advised plaintiff that his examination disclosed that she was on the verge of a nervous breakdown, defendant accused plaintiff of "conspiring with the doctors" and insisted there was nothing wrong with her. Plaintiff testified that in June, 1936, a group of people were at the tavern for a dance; that at about two-thirty o'clock on Sunday morning defendant became angry because plaintiff would not "drink and carry on with the people," and when she went back and remained in her room defendant followed her, slapped her, picked up a bottle of beer, threw it at her and it struck her in the face, "he split my nose with it." Plaintiff further testified that defendant, on various occasions, had told her friends that she went to Potosi and "misbehaved so that people came out there and said he ought to do something about it and said I was running around with other men." According to plaintiff these accusations were untrue; that she went to Potosi not over once a month, and when she did she took her children with her and took them to a picture show.

On cross-examination plaintiff was asked with reference to one Art Engler who worked for defendant from March 17, 1936, until sometime in May, 1937. It appears that Engler had lost his job at what is referred to "at the spring, where he worked some two and a half months," and plaintiff testified the defendant then told Engler he could come out to the Inn and work for his board until he could pick up another job. According to plaintiff Engler saw defendant on the occasion when defendant slapped plaintiff, struck her in her face with the bottle of beer, and that when defendant saw that Engler had witnessed the assault he threatened Engler, who thereupon went to his room, packed his clothes and left, but that defendant later on asked Engler to come back, which he did.

On recross-examination plaintiff was asked if it was not a fact that her trouble with her husband started when Art Engler began working for them. Plaintiff denied this and was then asked, "Isn't it true that you expect to marry Art in the event you get a divorce from Fred?" Plaintiff denied having any such intentions.

Mrs. Marple Wilson corroborated plaintiff's testimony to the effect that in 1927, prior to the birth of plaintiff's first baby, defendant swore at her and threatened to kill her if she did not get rid of it. She testified that defendant said, "if you don't get rid of that damned kid I will kill you." Mrs. Wilson further testified that "on the occasion when she worked for defendant" there were times when defendant did not speak to the plaintiff for several weeks at a time.

Mrs. Mary E. Hill, mother of plaintiff, testified that her daughter came to her home in 1927, crying, and said she left defendant because he threatened to kill her unless she "got rid of her unborn child." Upon being recalled Mrs. Hill was asked the questions:

"Q. On an occasion, about three years ago, when Mrs. Bevier came to your home, did you notice anything unusual about her face? A. Yes, sir.

"Q. What did you see? A. Well I saw a blue place over her left eye, and a cut place on her nose, and a bruise on one of her arms."

Mrs. Lawrence Wood testified that she lived close to the Inn where defendant and plaintiff lived; that one night in August, 1937, between twelve-thirty and one o'clock, plaintiff and her children came to her home and spent the balance of the night.

Mrs. Ethel Yost testified that she had heard defendant curse plaintiff; that he had called her a "G-D fool, and things like that."

Arthur A. Engler testified that he was in the employ of the defendant for about fourteen months; that he "helped with the water wheel; I helped dig out the cellar; worked on the swimming pool; helped repair porches and helped paint the same; was hauling pine logs; waiting on customers; icing beer, and everything imaginable." He testified "there was continual strife and defendant cursed her continually. At various times out of a clear sky he would curse her and call her vile names * * * generally over some trivial matter or something pertaining to her folks or her brother or her parents or some little thing that might go wrong around the house. * * * They had a party out there one night. * * * They stayed until two or two-thirty in the morning. It was during the evening that he wanted her to dance with some of the men folks who were under the influence of liquor. She refused as she wasn't feeling well, and as they were leaving, or had left, I was bringing in the oil and gas from out in front,...