Delfelder v. Norton Bros. Cost. Co.

• Decision Date: 05 October 1936
• Docket Number: No. 18655.,18655.
• Citation: 98 S.W.2d 127
• Parties: EMMA DELFELDER, RESPONDENT, v. NORTON BROS. CONSTRUCTION CO. AND MASSACHUSETTS BONDING AND INSURANCE CO., APPELLANTS.
• Court: Missouri Court of Appeals

98 S.W.2d 127

EMMA DELFELDER, RESPONDENT, v. NORTON BROS. CONSTRUCTION CO. AND MASSACHUSETTS BONDING AND INSURANCE CO., APPELLANTS.

No. 18655.

Kansas City Court of Appeals. Missouri.

October 5, 1936.

Appeal from Circuit Court of Jackson County. — Hon. Emory S. Wright, Judge.

AFFIRMED.

Kennard & Gresham, F.M. Kennard and Walter J. Gresham for respondent.

Harding, Murphy & Tucker for appellants.

SPERRY, C.

Plaintiff brought this proceeding seeking compensation for the death of her husband, Martin Delfelder, an employee of the defendant Norton Brothers Construction Company. The matter was heard by a commissioner and compensation was denied upon the ground that plaintiff had been guilty of adultery, which wrong the employee had not condoned. The award of the commissioner was affirmed by the Commission, and plaintiff appealed. The circuit court set aside the award and remanded the cause to the Commission for further proceeding. The defendants have appealed.

Plaintiff and Martin Delfelder were married in Macon County, Missouri, on August 24, 1895. Later they moved to Kansas City where they lived together until August 24, 1925, at which time plaintiff's husband left her. Shortly after the separation plaintiff became the housekeeper of one Poole and both of them occupied the same apartment. There was evidence to the effect that there was only one bed in the apartment and that plaintiff and Poole occupied that apartment. We will not further detail the evidence on this subject for the reason that it suffices to say that the evidence was sufficient to warrant the Commission in finding that plaintiff and Poole lived in adultery.

The Commission denied compensation for a specific reason, namely, that plaintiff was guilty of adultery and that the employee had not condoned the wrong even though he visited plaintiff in the apartment and cohabited with her; that "the fact that she (plaintiff) continued to live with Poole in adultery, would have nullified any condonation, and would have revived the original grievance."

For the legal conclusion just stated the Commission relied upon the holding in the case of O'Neil v. O'Neil, 264 S.W. 61, l.c. 64, wherein the court said: "Condonation is the pardon of a known violation of the marriage relation. It is not an absolute but a conditional forgiveness of marital misconduct. It is an excuse for past offenses upon the implied condition that the marriage vows shall, thereafter, be duly regarded. It is not a license for subsequent and continual violation, and if a breach of the condition, inherent in condonation, takes place, the original grievance, as a cause of divorce, is at once revived... . An offense which has been condoned may be revived not only by a repetition of the same or similar offense, but also by the subsequent commission of other marital offenses."

The rule announced in the O'Neil case is well enough when applied to the facts of that particular case. In the case at bar, however, the undisputed evidence of both parties shows that the employee visited plaintiff many times in the apartment in which she lived. He knew that there was only one bed in that apartment and that plaintiff was the housekeeper and amorous companion of Poole. The undisputed evidence also shows that the visits of the employee were frequent, two or three times a week, over a long period of time, the last visit was about two weeks prior to the injury. He therefore knew that the relationship of plaintiff and Poole was a fixed and continuing one. In such circumstance the employee did not merely condone the infidelity of his wife, he connived in it. [Viertel v. Viertel, 86 Mo. App. 494; Robbins v. Robbins, 140 Mass. 528.]

The general rule stated in 30 C.J. 594, is that "as long as husband and wife continue to cohabit, he is liable for her necessaries, although she may be guilty of serious misconduct, and even, it seems, if she commits adultery, providing the cohabitation continues."

In the case of Schulz v. Great Atlantic & Pacific Tea Company, 56 S.W. (2d) 126, l.c. 128 and 129, the Supreme Court said:

"In the year 1919, deceased filed a divorce petition against respondent in the circuit court of the City of St. Louis, Mo. Respondent filed a cross-petition. The divorce case was tried and both petition and cross-bill were...