Bryant v. Bryant

• Decision Date: 18 July 1950
• Docket Number: No. 27920,27920
• Citation: 232 S.W.2d 199
• Parties: BRYANT v. BRYANT.
• Court: Missouri Court of Appeals

Page 199

232 S.W.2d 199

BRYANT v. BRYANT.

No. 27920.

St. Louis Court of Appeals, Missouri.

July 18, 1950.

R. P. Smith, Cape Girardeau, for appellant.

A. M. Spradling, Jr., and Strom & Spradling, all of Cape Girardeau, A. E. Weinstein, Harry U. Scruggs, and Weinstein & Scruggs, all of Memphis, Tenn., for respondent.

McCULLEN, Judge.

On July 11, 1949, appellant, as plaintiff, filed in the Cape Girardeau Court of Common Pleas a petition for divorce alleging that he was lawfully married to defendant, Mary M. Bryant, at Atwood, Tennessee, on July 1, 1928, and continued to live with her as her husband from and after said date until April 8, 1948; that at all times he faithfully demeaned himself and discharged all his duties as husband of defendant and at all times treated her with kindness and affection; that defendant did on or about April 8, 1948, wrongfully and without cause desert and abandon plaintiff and has wrongfully and without cause absented herself from plaintiff for the space of more than one whole year next before the filing of this petition; that there was one child born of the marriage, namely, Bobby Lee Bryant, who is now nineteen years of age, employed and self-supporting.

Plaintiff further alleged that he is now a resident of Cape Girardeau County, Missouri, and has resided within the State of Missouri continuously for one whole year next before the filing of his petition. Service on defendant was obtained by publication and when defendant came to Missouri for a hearing on her motion to dismiss plaintiff's petition, personal service on her was also obtained.

Defendant's motion to dismiss plaintiff's petition alleged that at the time of the filing of the petition neither plaintiff nor defendant was a resident of Cape Girardeau County, Missouri, and that plaintiff was not a resident of the State of Missouri one whole year next before the filing of his petition, and that the offense or injury complained of in plaintiff's petition was not committed within the State of Missouri or while one or both of the parties resided within this state.

On October 14, 1949, the court heard the parties and their witnesses on defendant's motion to dismiss, and on October 28, 1949, entered an order sustaining defendant's motion to dismiss plaintiff's petition. In due time plaintiff filed a motion for a new trial which was overruled by the court on November 18, 1949, and on the same date plaintiff duly filed his notice of appeal, appealing to this court.

At the hearing on her motion to dismiss, defendant testified that she and plaintiff resided at 1541 Southern in Memphis, Tennessee; that they had lived there between 7 and 8 years and that plaintiff resided at that address until about a year and a half prior to the date of the hearing, at which time plaintiff moved to the corner of Mill and Second Streets in Memphis, Tennessee; that defendant and her sister, Mrs. Jewell Moore, had on several occasions seen plaintiff going in and out of the address at Mill and Second Streets (also referred to as 537 North Second Street). Defendant further testified that plaintiff called her on the telephone around the latter part of February or in the first part of March, 1949, and wanted to know when defendant would give him a divorce; that plaintiff did not at any time tell defendant that he was not a resident of Memphis and had moved to Cape Girardeau; that as late as June 28, 1949, defendant saw him driving in Memphis an automobile which he formerly owned; that she saw him driving the automobile twice or three times a week at Mill and Second Streets in Memphis; that at the time of the separation plaintiff was the owner of a 1941 Ford automobile and this was the car she had seen him driving two or three times a week in Memphis thereafter; that in June 1949, she saw plaintiff in Memphis driving a 1947 automobile bearing Tennessee license plates 59302; that she did not know who owned the 1947 automobile.

Mrs. Jewell Moore, sister of defendant, testified that she accompanied defendant and assisted her in attempting to shadow and follow plaintiff. Mrs. Moore's testimony was approximately the same as that of defendant. On cross examination she testified that plaintiff was a Greyhound Bus driver and that his run brought him to Memphis two or three times a week; that he laid over one day and one night in Memphis on each trip; that plaintiff had never told her that he had moved his residence from Memphis, Tennessee, nor did he ever tell her that his residence continued to remain in Memphis.

Robert Bryant, the son of plaintiff and defendant, testified on behalf of defendant that he was nineteen years old at the time of the hearing and was living at 1541 Southern in Memphis, Tennessee; that so far as he knew his father continued to reside in Memphis until July 1949; that during the past twelve months he had visited with his father in Memphis, Tennessee, and on numerous occasions had met his father at the address on Mill and Second Streets in Memphis; that these visits were arranged between himself and his father by telephone conversations in which a meeting place would be agreed on; that some meetings were on the Court Square in the Memphis business district and some were in the Greyhound Bus Garage, while others were at 537 North Second Street in Memphis; that at the time his mother and father separated they had a 1941 Ford automobile; that since July 15, 1948, he had, with his father's permission, driven said automobile 'a lot of times'; that the automobile had Tennessee license plates on it and that sometimes his father would have it parked behind the house at Mill and Second Streets, and at other times near the Greyhound Garage in Memphis; that his father never gave him any address at which he could contact him in Cape Girardeau, Missouri, but that his father did give him a telephone number at which he could contact him at 537 North Second Street, Memphis, Tennessee. The witness recalled that the license number of the 1941 Ford automobile which his father drove was 48532.

On cross examination the witness testified that after his mother and father separated he talked to his father maybe three and four times a week; that his father was driving a bus at that time; that he did not know what run his father had.

C. I. Marsh, General Superintendent of the Dixie Greyhound But Lines at Memphis, Tennessee, identified defendant's Exhibits 1, 2, 3, and 4. He stated that he had employed plaintiff as a bus driver in August 1945, at which time plaintiff filled out the usual application for employment for the personnel records of the company; that from July 1948 through July 1949, plaintiff was on the run from Memphis, Tennessee, to Cape Girardeau, with an eleven hour layover in Cape Girardeau and a twenty-four hour layover in Memphis. Defendant's Exhibit No. 1 was a medical examination signed by A. M. Bryant and the Medical Examiner, and gave the address of A. M. Bryant as No. 537 North Second Street, Memphis, Tennessee. It was dated February 18, 1949. Defendant's Exhibit No. 2 showed that plaintiff was granted a leave of absence from July 23, 1949, to September 2, 1949, and was dated July 22, 1949. It gave Bryant's address as Memphis, Tennessee. Defendant's Exhibit No. 3 was a leave of absence dated September 2, 1949, and effective from September 2, 1949, to October 17, 1949. This exhibit also gave Bryant's address as Memphis, Tennessee. Defendant's Exhibit No. 4 was a medical examination signed by A. M. Bryant and the doctor who made the examination. It was excluded by the court as immaterial.

Mr. Marsh further testified that Dixie Greyhound Bus Lines, insofar as its files were concerned, carried plaintiff's address as Memphis, Tennessee, and so far as those files showed plaintiff 'never did have any other address'; that the bus company did not require that a driver live at any place on his run; that he did not know which terminus of the Cape Girardeau to Memphis run plaintiff considered his headquarters or his home; that plaintiff was paid and received all communications from the company at the Memphis Greyhound Garage; that before the second leave of absence granted to plaintiff had expired plaintiff 'bid in' a run between Clarksdale, Mississippi, and Vicksburg, Mississippi, and that the date he bid in such run was September 17, 1949; that on this run plaintiff spent one night in Clarksdale, Mississippi, and one night in Vicksburg, Mississippi.

John W. McGoldrick, County Clerk for Shelby County, Tennessee, testified that he had the custody and control of the Tennessee State Registration for automobile licenses. He identified defendant's Exhibits Nos. 5, 6, and 7, which were admitted in evidence. Defendant's Exhibit No. 5 was a certificate of automobile registration for the year 1948 in the State of Tennessee. It was dated March 31, 1948, and gave the owner's name as A. M. Bryant, 1541 Southern, Memphis, Tennessee. Written on the face of the document in red ink appears the following: '8/8/48 Mrs. J. H. Hopper 1355 Agnes Pl. Mphs.' Defendant's Exhibit No. 6 was a transfer of title from A. M. Bryant to Mrs. J. H. Hopper. The transfer was dated 8/8/48 and gave Bryant's address as 1541 Southwestern, Memphis. Defendant's Exhibit No. 7 was a certificate of automobile registration of the State of Tennessee for 1949 which was dated April 25, 1949, and contains the signature of A. M. Bryant showing that he signed the certificate of automobile registration as agent of Justeen Hopper, the owner of the motor vehicle.

After defendant had completed her introduction of testimony and evidence, plaintiff introduced the deposition of Mrs. Elnora Joy taken on behalf of plaintiff on September 28, 1949, in Memphis, Tennessee. Mrs. Joy testified that she lived at 537 North Second Street in Memphis and had lived there for about eight years prior to the preceding January; that she operated a rooming house at the above mentioned number but kept no...