Dowling v. Dowling

• Decision Date: 02 June 1914
• Docket Number: No. 13535.,13535.
• Citation: 167 S.W. 1077,183 Mo. App. 454
• Parties: DOWLING v. DOWLING.
• Court: Missouri Court of Appeals

167 S.W. 1077

183 Mo. A. 454

DOWLING v. DOWLING.

No. 13535.

St. Louis Court of Appeals. Missouri.

June 2, 1914.

1. DIVORCE (§ 29)—GROUNDS—INDIGNITIES.

The use of offensive language by a husband to his wife, his laying of his hand on her shoulder by way of emphasis of what he said, and his desertion of her, all within a few minutes, constitute but a single indignity, insufficient under the statute making "indignities" ground for divorce.

2. DIVORCE (§ 29)—GROUNDS—"INDIGNITY."

Neither a husband's declaration, on the morning following a quarrel with his wife, that he was not going to continue to live with her, nor his notification of the landlord and grocer that he would not be responsible for her bills, constituted an "indignity" within the divorce statute.

Appeal from Hannibal Court of Common Pleas; Wm. T. Ragland, Judge.

Action by Catherine M. Dowling against John K. Dowling. Judgment for defendant, and plaintiff appeals. Affirmed.

See, also, 164 S. W. 643.

Berryman Henwood, of Hannibal, for appellant. J. W. Hays, of Hannibal, for respondent.

ALLEN, J.

This is an action for divorce, prosecuted by the wife, and grounded upon indignities alleged to have been offered to her by the defendant husband. The latter interposed a general denial. The court below found the issues for the defendant, and dismissed plaintiff's bill, and from such decree the plaintiff prosecutes this appeal.

Plaintiff and defendant were married on September 19, 1911, and lived together until January 3, 1912. Plaintiff had been twice married theretofore, having obtained divorces from both of her former husbands. By her first marriage she had two children, a boy and a girl, who were aged 16 and 18 years, respectively, at the time of her marriage to the defendant. At the latter time plaintiff and her two children were living in the city of Hannibal; plaintiff and her daughter being employed in a shoe factory. The defendant owned a farm some five miles north of Hannibal, on what is known as Bay Island, and also some property in the city of Hannibal. His business, it seems, was that of farming, and prior to his marriage it appears that he spent the greater part of his time upon the farm, living in one of two cabins located thereon.

Plaintiff and defendant had been acquainted with each other less than a week prior to their marriage. After the marriage they lived, with plaintiff's children, in the house which plaintiff had theretofore occupied as a tenant, in the city of Hannibal, until the separation. It appears, however, that defendant contemplated taking his wife to the farm to live, and that their stay in Hannibal was intended to be temporary. The alleged indignities, counted upon in the petition, relate to defendant's conduct toward plaintiff on the evening of January 3, 1912, together with alleged improper conduct on his part with another woman.

Both plaintiff and defendant testified that prior to the evening of January 3d there had been no trouble whatsoever between them. Plaintiff's version of what occurred on that evening is as follows:

"He came in saying that he was going to come back that night and take us all to the show, but when he got back it was too late to go to the show. He came in and sat down, and I said, `It's too late to go to the Park Theater, but we can go to the Star.' And he commenced by saying, `Well, I've made a damned fool of myself,' and he said that a dozen times. Finally I said, `How have you made yourself a damned fool? He says, `By marrying you and two damned spoiled kids,' and he said he didn't care anything about me, and never would have married me if he hadn't been drunk as a fool, and that he was going to step down and out; the law didn't compel him to support me and two damned kids, and he wasn't going to do it. * * * I could take my two kids, and take in boarders, or take in washing, or anything I damn please—not to look to him for support; he was going to shut me off. * * * `Don't ever come in my sight.' * * * `I am going to get out of it, by God, right to-night.'"

And plaintiff testified by way of emphasis defendant struck her on the right shoulder; that he addressed plaintiff's daughter, saying that he was not going to buy clothes for her any longer; and that thereupon a controversy ensued between defendant and the girl, in the course of which defendant applied a vile epithet to the latter, and said that if she were a man he would "whale" her. Plaintiff further testified that she thereupon asked defendant if she had done anything to merit such treatment, and that he said:

"No, you are as good a woman as ever lived. You are as good a woman as my mother, but I am going to get out of it."

Plaintiff's said daughter, Bertha Sterling, testifying in plaintiff's behalf, corroborated, in the main, plaintiff's version of what took place on the evening in question.

Defendant left the house, returning the next morning after his clothes. Plaintiff testified that upon his return she asked him if he meant what he had said the night before, and that he said, "I certainly did; I haven't forgotten anything I said; I am going to step down and out;" and that defendant notified the landlord, and the grocer with whom they dealt, that he would not be responsible for plaintiff's rent or grocery bills.

Defendant strongly denied having used the language attributed to him by plaintiff. He declared that he did not state that he had made a fool of himself by marrying her, nor did he say that he cared nothing for her, and would not have married her, if he had not been intoxicated. On the contrary, he declared that he was quite fond of his wife; that they had never had the slightest difficulty theretofore, but had been quite affectionate; and that the trouble had been brought about by plaintiff's daughter. He testified that upon the evening in question the daughter asked him for money, and that he said, "Why is it you never care for me only when you want some money?" that she replied that this was not true, and that he then said, "It is; you simply don't greet me at all, don't speak to me;" that thereupon the daughter called him a liar, and that he said to plaintiff, "Are you going to allow that?" He stated that plaintiff said that she could not help it, and that defendant ought to give her daughter some money. He declared that he merely said to the daughter, "If you were a man, you wouldn't say that— wouldn't call me a liar;" and that he then said that it was getting too hot for him, and that he was going to get out. Defendant said that, upon returning the next morning to get his clothes, nothing was said between him and plaintiff, except that she asked him if he wanted the clothes, and he said, "I guess I better take them;" and that she thereupon said, "Well, all right; here they are."

Defendant does not deny notifying the landlord and the grocer that he would not be responsible for his wife's bills. There is considerable testimony in the record as to whether or not plaintiff refused to go to live with defendant on his farm at Bay...