Drath v. Grath

• Decision Date: 06 May 1924
• Docket Number: No. 18441.,18441.
• Parties: DRATH v. GRATH.
• Court: Missouri Court of Appeals

261 S.W. 718

DRATH v. GRATH.

No. 18441.

St. Louis Court of Appeals. Missouri.

May 6, 1924.

Appeal from St. Louis Circuit Court; John W. Calhoun, Judge.

"Not to be officially published."

Action by Walter Grath against Adeline Grath. From judgment of dismissal, plaintiff appeals. Affirmed.

Holland, Rutledge & Lashly, of St. Louis, for appellant.

Brownrigg; Mason & Altman, of St. Louis, for respondent.

ALLEN, P. J.

This is an action for divorce, by the husband against the wife. The parties were married on May 28, 1902, in the city of St. Louis, and there lived together as husband and wife, until a separation occurred on or about August 20, 1920. The suit was instituted on September 15, 1921, and came to trial on October 3, 1922.

The petition alleges that defendant offered plaintiff such indignities as to render his condition intolerable, in that "during the last five years" she bore no affection for plaintiff, and made his life miserable by complaining of his conduct and quarreling with him, without reasonable cause, and during the last three years in which they lived together annoyed plaintiff to such extent as to destroy his peace of mind, disturb his rest, comfort, and sleep, and injure his health; that during the last five years or more defendant treated plaintiff's mother with disrespect and contempt, unjustly accused plaintiff's mother of untruthfulness, said she hoped plaintiff's mother would choke and go to hell, and repeatedly said she wished all of plaintiff's relations were in hell. It is alleged that about 10 years prior to the institution of the suit plaintiff purchased with his own money two apartment houses on Laclede avenue in the city of St. Louis, taking title in the name of his wife and himself as tenants by the entirety, and that defendant harassed and annoyed plaintiff in respect to the management of the property by interfering with the tenants and janitors and by disagreeable, unreasonable, and quarrelsome conduct toward them; that defendant is possessed of a disagreeable disposition and bad temper, and during the last five years frequently quarreled with plaintiff's friends, without reasonable cause, annoying and humiliating him, and gave vent to her temper by loud and boisterous demonstrations, such as the slamming of doors and throwing about of household articles; and that within said period defendant has frequently spoken of and concerning plaintiff, within and without his presence, and in the presence of others, in a disrespectful and sneering manner.

The answer admits the marriage, and denies generally the other allegations of the petition.

After hearing the evidence adduced by both parties the trial court denied plaintiff a divorce, dismissing his bill, and he has brought the case here by appeal.

Plaintiff was nearly 59 years of age at the time of the trial below, and defendant 40 years of age. It appears that plaintiff had been previously married and had secured a divorce from his first wife. Plaintiff was engaged in the brick manufacturing business, having a plant at Dowey, not far from Alton, Ill., with offices in the city of St. Louis. After the acquisition of the apartment buildings mentioned in the petition, which plaintiff purchased, causing the title to be placed in the names of himself and wife as tenants by the entirety, the parties lived in one of the apartments. Much of plaintiff's testimony is by way of conclusions, though some such testimony was stricken out on defendant's motion. And both parties were permitted to give testimony, without objection, in the nature of confidential communications. As to his wife's conduct and attitude toward him, plaintiff testified that "sometimes she was all right," but "about half the time" she acted toward him "in a sneering way"; that she was "always ready to quarrel," and "looking for quarrels." It appears that discord arose over "money matters." For about 15 years plaintiff gave defendant a monthly allowance of $10, which, according to plaintiff's testimony, was for defendant's personal needs, he paying all of the bills for supplies in the home, though according to defendant's testimony out of her allowance she had to clothe herself and "buy linen and things for the home and fruit and vegetables." "During the war," perhaps two years or more prior to the separation, plaintiff, "on account of poor business," as he says, reduced the allowance to $20 per month, at which, it seems, it remained until at or about the time of the separation. He said that up to the time of the separation defendant had often quarreled with him about the reduction of her allowance. In addition to the two apartment buildings mentioned, plaintiff owned, in his own name, other improved real estate in St. Louis. He collected and handled the rents from the apartment buildings as well as from his other property, but his testimony is that he applied all of the net income thus derived to the reduction of mortgages on the property.

Plaintiff testified that about 18 months prior to the separation defendant refused to further accompany him on visits to his mother saying that his mother was causing trouble between them and had lied about her, and that she often referred to his mother in uncomplimentary terms. It appears that plaintiff frequently brought home eggs purchased near his brick plant, and was accustomed to take some of them to his mother, and he said that defendant quarreled with him about the matter, upon one occasion hid the eggs and reviled his "folks," saying that they were trying to separate her and plaintiff, and that she wished they were in hell. He said that defendant continually found fault with his clothing, saying that he dressed like a tramp, and refused to go out with him unless he wore such clothing as suited her, and upon one such occasion, when he went out alone, "slammed doors and dragged things about very violently"; that she caused trouble by interfering and quarreling with the janitors of the apartment buildings; that she found fault with plaintiff and treated him with incivility in the presence of friends, and on one occasion, at an Easter dinner party, refused to sit with him or talk to him; that in 1920 she wrongfully accused him of intimacy with a young lady connected with the brick plant because he had given the latter a comb and a box of candy, these gifts having been made by him because defendant had been a guest at the young lady's home, upon a farm, for a period of 10 days; and that upon another occasion she said that a friend, Mrs. Cosgrove, was not satisfied with one husband but wanted to steal another.

Plaintiff's further testimony is that during the last year prior to the separation, "it was one continual quarrel," though he was never, upon any occasion, responsible therefor, that for some months prior to the separation she did not bid him farewell in the morning or greet him upon his return, and that during the last four months he occupied a separate room because he could not stand defendant's quarreling, nagging, and scolding, which kept him awake at night. He said that on the evening of the separation he laid some money on the dresser, and defendant demanded more, saying that half of what he had belonged to her; that he told her that if she needed anything she had a bank account of her own, whereupon she "exploded," and plaintiff rushed out of the room, grabbed his hat and coat, and left, and did not return.

A Mrs. Bowling, who from April, 1917, to May, 1920, lived in one of the apartments mentioned, and frequently saw the parties together, particularly on the front porch of their apartment on summer evenings, testified generally that defendant quarreled and found fault with plaintiff, that defendant "got in a terrible rage" on one occasion when plaintiff failed to bring her a particular drink from a drug store, and that, if plaintiff would leave the front porch to get a cake for a child, defendant would quarrel. What was said on such occasions does not appear. From testimony of this witness on cross-examination it appears that she and defendant had become on very unfriendly terms.

Mrs. Cosgrove, who said that she had known the parties for 8 years, and that for about 11 months prior to the separation she and her husband, since deceased, were on terms of intimate friendship with them, testified in general terms that defendant was quarrelsome and disagreeable, nagged plaintiff, and found fault with the way he ate and with the clothes he wore, saying that on one occasion defendant quarreled because she was dissatisfied with a certain automobile. Nothing appears as to what was said by plaintiff at any time. It appeared that the witness and defendant were no longer friendly.

The testimony of one Weir, formerly a janitor at the apartments mentioned, is that defendant was accustomed to yell at plaintiff and tell him what to do, and that she interfered with the heating of the apartments, though he admitted that plaintiff told him to take orders from her. He said that defendant quarreled with everybody, and that he left because of her fussing and quarreling. The testimony of the witness Mrs. Betts, another tenant, is inconsequential, being merely to the effect that she had heard—she says from defendant's witness Mrs. Banmann—that defendant had an ungovernable temper. And that of plaintiff's sister, Mrs. Ikler, simply tends to show that plaintiff and defendant both treated each other well in her presence, though the latter "said things" to her about plaintiff, complaining of his clothing and his failure to give her sufficient money.

The testimony of Mr. Cosgrove, given at the trial of the maintenance suit, and read in evidence at this trial, is that upon several occasions defendant was quarrelsome and nagging; that once when he and his wife were with plaintiff and defendant in plaintiff's automobile, defendant's manner was a little quarrelsome because of some dissatisfaction with the automobile, and when...