Dunn v. Dunn, No. 27531.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtWolfe
Citation216 S.W.2d 141
Decision Date21 December 1948
Docket NumberNo. 27531.
PartiesETHEL DUNN, APPELLANT, v. GUYTON E. DUNN, RESPONDENT.
216 S.W.2d 141
ETHEL DUNN, APPELLANT,
v.
GUYTON E. DUNN, RESPONDENT.
No. 27531.
St. Louis Court of Appeals. Missouri.
Opinion filed December 21, 1948.
Appellant's motion for a rehearing and for modification of opinion overruled January 21, 1949.

Appeal from Circuit Court of the City of St. Louis. — Hon. Waldo C. Mayfield, Judge.

AFFIRMED.

White, White & White, Samuel White and Alva W. Hurt for appellant.

(1). The trial court erred in denying the plaintiff a decree of divorce, for the reason that under the law and the evidence plaintiff was entitled to a decree even though defendant was of unsound mind at the time of the institution of the suit and at the time of the trial. 149 American Law Reports, 1286; Crow v. Crow, 335 Mo. 636, 73 S.W. 2d 807; Graves v. Graves, 255 Mo. 468, 164 S.W. 496; Fisher v. Fisher, 54 W. Va. 146, 46 S.E. 118, 119; Lewis v. Lewis, 60 Okla. 60, 158 Pac. 368, 369; King v. King, 283 S.W. 73, 214 Ky. 171; Cobb v. Cobb, 143 Pac. 2d 857. (2) Divorce is a legal right and under the law it was the mandatory duty of the Court to grant plaintiff a decree of divorce. Fisher v. Fisher, 54 W. Va. 146, 46 S.E. 118, 119; Raney v. Raney, 128 Mo. App. 167, 172; Deschodt v. Deschodt, 59 Mo. App. 102, 105; Morris v. Morris, 60 Mo. App. 86; Needham v. Needham, 299 S.W. 832.

Herman D. Olian for respondent.

WOLFE, C.


This is an action for divorce wherein a decree was denied and the petition dismissed with prejudice by the trial court after

216 S.W.2d 142

hearing plaintiff's evidence. From the order denying a divorce and dismissing the case plaintiff prosecutes this appeal, which was submitted upon the brief and argument of plaintiff but taken on the record as to the defendant.

The petition is in the usual form and alleges as grounds for the divorce that the defendant's treatment of plaintiff was cruel, that he offered her numerous indignities and that the parties were separated June 26, 1944. After it was filed the attorneys for the plaintiff suggested the insanity of the defendant and the court at their request appointed a guardian ad litem for him.

The guardian ad litem filed an answer in which he asserted that the defendant was "admitted to the St. Louis City Sanitarium on June 7, 1943, and was paroled on July 20, 1943; and on June 24, 1944, said patient was returned to the institution and has remained there continuously since that time. He was presented to the Staff on September 1, 1944, at which time a diagnosis of Schizophrenia, Paranoid Type was made, and it was recommended that he was institutional."

Upon the trial of the case plaintiff testified only to the fact and date of her marriage; the length of time she lived with her husband; her period of residence in the state of Missouri; and that there was a child born of the marriage.

Three witnesses, who were friends of the plaintiff and had visited in her home at times for a period of about five years before the separation took place, testified to cruel and brutal treatment that plaintiff suffered at the hands of the defendant. After submission of the case upon the above evidence the trial judge denied the divorce and dismissed the petition, stating that he did so because the defendant was insane.

Appellant urges here that upon her proof of statutory grounds for divorce, standing uncontradicted, it was the duty of the court to grant her the decree. If the question of defendant's sanity were not in the case, plaintiff's contention would be sound, for her right to a divorce is a legal right conferred upon her by statute, and when she has proven her cause by uncontroverted and uncontradicted testimony, there is nothing left to the discretion of the trial court and it becomes mandatory upon it to award the decree sought. Hess v. Hess, Mo. App., 183 S.W. 2d 560; Needham v. Needham, Mo. App., 299 S.W. 832; Alfree v. Alfree, 175 Mo. App. 344, 162 S.W. 650; Raney v. Raney, 128 Mo. App. 167, 106 S.W. 577; Morris v. Morris, 60 Mo. App. 86. However, since the defendant is admittedly insane the sufficiency of the evidence must be examined with that factor in mind.

Perhaps the first point to be investigated is the right of a husband or wife to bring suit for a divorce against an insane spouse. We have been cited to...

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6 practice notes
  • Willis v. Willis, No. 7332
    • United States
    • Missouri Court of Appeals
    • December 28, 1954
    ...Thomason v. Thomason, Mo.App., 262 S.W.2d 349, 352; Fossett v. Fossett, Mo.App., 243 S.W.2d 625, 632(1); Dunn v. Dunn, 240 Mo.App. 87, 216 S.W.2d 141, 146(5)], we proceed to a consideration of whether defendant in the instant case was 'insane' at the time of the acts complained of. In appro......
  • Schuler v. Schuler, No. 29460
    • United States
    • Court of Appeal of Missouri (US)
    • May 15, 1956
    ...There is a legal presumption, applicable in divorce cases, Willis v. Willis, Mo.App., 274 S.W.2d 621, and Dunn v. Dunn, 240 Mo.App. 87, 216 S.W.2d 141, that every person is sane. Fendler v. Roy, 331 Mo. 1083, 58 S.W.2d 459; Reynolds v. Maryland Casualty Co., 274 Mo. 83, 201 S.W. 1128; State......
  • Rice v. Rice
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • April 6, 1955
    ...214 N.W. 133; Kunz v. Kunz, 171 Minn. 258, 213 N.W. 906; McIntosh v. McIntosh, 151 Miss. 78, 117 So. 352; Dunn v. Dunn, 240 Mo.App. 87, 216 S.W.2d 141; Heim v. Heim, 35 Ohio App. 408, 172 N.E. 451; Castner v. Castner, 159 Pa.Super. 387, 48 A.2d 117; Camire v. Camire, 43 R.I. 489, 113 A. 748......
  • Abresch v. Schultz, No. 27503.
    • United States
    • Missouri Court of Appeals
    • December 21, 1948
    ...that the jury "find and believe from the evidence that the defendants, or either of them, employed the plaintiff to render services to 216 S.W.2d 141 them in the operation of their partnership, * * *." (Emphasis ours.) It is objected that by the use of the word "employed" facts in dispute w......
  • Request a trial to view additional results
6 cases
  • Willis v. Willis, No. 7332
    • United States
    • Missouri Court of Appeals
    • December 28, 1954
    ...Thomason v. Thomason, Mo.App., 262 S.W.2d 349, 352; Fossett v. Fossett, Mo.App., 243 S.W.2d 625, 632(1); Dunn v. Dunn, 240 Mo.App. 87, 216 S.W.2d 141, 146(5)], we proceed to a consideration of whether defendant in the instant case was 'insane' at the time of the acts complained of. In appro......
  • Schuler v. Schuler, No. 29460
    • United States
    • Court of Appeal of Missouri (US)
    • May 15, 1956
    ...There is a legal presumption, applicable in divorce cases, Willis v. Willis, Mo.App., 274 S.W.2d 621, and Dunn v. Dunn, 240 Mo.App. 87, 216 S.W.2d 141, that every person is sane. Fendler v. Roy, 331 Mo. 1083, 58 S.W.2d 459; Reynolds v. Maryland Casualty Co., 274 Mo. 83, 201 S.W. 1128; State......
  • Rice v. Rice
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • April 6, 1955
    ...214 N.W. 133; Kunz v. Kunz, 171 Minn. 258, 213 N.W. 906; McIntosh v. McIntosh, 151 Miss. 78, 117 So. 352; Dunn v. Dunn, 240 Mo.App. 87, 216 S.W.2d 141; Heim v. Heim, 35 Ohio App. 408, 172 N.E. 451; Castner v. Castner, 159 Pa.Super. 387, 48 A.2d 117; Camire v. Camire, 43 R.I. 489, 113 A. 748......
  • Abresch v. Schultz, No. 27503.
    • United States
    • Missouri Court of Appeals
    • December 21, 1948
    ...that the jury "find and believe from the evidence that the defendants, or either of them, employed the plaintiff to render services to 216 S.W.2d 141 them in the operation of their partnership, * * *." (Emphasis ours.) It is objected that by the use of the word "employed" facts in dispute w......
  • Request a trial to view additional results

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