Dwyer v. Dwyer

• Decision Date: 10 February 1885
• Citation: 16 Mo.App. 422
• Parties: WILLIAM DWYER, Respondent, v. MARY E. DWYER, Appellant.
• Court: Missouri Court of Appeals

16 Mo.App. 422

WILLIAM DWYER, Respondent,

v.MARY E. DWYER, Appellant.

St. Louis Court of Appeals, Missouri.

Feb. 10, 1885.

APPEAL from the St. Louis Circuit Court, THAYER, J.

Reversed and judgment.

GARESCHÉ & HOBEIN, for the appellant: If the wife suffered such indignities as to render her condition intolerable she was justified in leaving him. And this even if they were not such indignities as would form a basis for divorce, since causes may exist sufficient to justify the wife in leaving her husband even though insufficient to form the basis of an action for divorce.-- Gillinwaters v. Gillinwaters, 28 Mo. 61; Lyster v. Lyster, 111 Mass. 327; Hardin v. Hardin, 17 Ala. 253; Cornish v. Cornish, 23 N. J. Eq. 208; Schrock v. Schrock, 4 Bush, 682; Pidge v. Pidge, 3 Metc. (Mass.) 258. And there can be no desertion unless objection be made by the party deserted, and his or her consent may be inferred from conduct.-- Simpson v. Simpson, 31 Mo. 24; Cornish v. Cornish, 23 N. J. Eq. 208; Meldowney v. Meldowney, 27 N. J. Eq. 328; Moores v. Moores, 10 N. J. Eq. 276; Thorpe v. Thorpe, 9 R. I. 56; Benkert v. Benkert, 32 Cal. 470; Pidge v. Pidge, 3 Metc. (Mass.) 258; Powell v. Powell, 29 Vt. 149. Where the husband's conduct has been such as to result in driving his wife out of the house, he himself is guilty of desertion.--1 Bishop's Mar. & Div. (6th ed.), sect. 785; Kinsey v. Kinsey, 37 Ala. 395; Schrock v. Shrock, 4 Bush, 684; Harding v. Harding, 33 Md. 345; Palmer v. Palmer, 12 N. J. Eq. 91; Pidge v. Pidge, 3 Metc. (Mass.) 258.

W. F. BOYLE, for the respondent.

THOMPSON, J., delivered the opinion of the court.

The plaintiff brought this action for divorce on the ground of abandonment. The answer is a general denial, and also a count in the nature of a cross-bill averring that “for more than one year prior to the filing hereof, the plaintiff, without any reasonable cause, has deserted, and absented himself from defendant, and has utterly failed, neglected, and refused to provide for defendant's support, wherefore defendant prays to be divorced,” etc.

The evidence shows that the parties intermarried on the 26th of August, 1873, and that they lived together as husband and wife a little over three months, until December 4, 1873, when the defendant left the plaintiff's house and has never since returned; that four days after thus leaving she brought an action for divorce on the ground of ill-treatment, in which action the circuit court at special term rendered a judment for the defendant (now plaintiff); that on appeal to the general term this judgment was reversed; that on appeal from the general term to this court the judgment of the general term was reversed and the judgment of the special term affirmed, the court here being of opinion that the evidence did not show that the defendant had offered such indignities to her as to render her condition intolerable within the meaning of the statute. 2 Mo. App. 17. The record proper in the former suit for divorce, including the opinion and mandate of this court, was put in evidence upon the trial of the present action.

It also appeared that, since the rendition of the judgment of this court in the former case, which was in the year 1876, the plaintiff and defendant have continued to live apart from each other and to hold no communication whatever with each other. The plaintiff, has made no effort or solicitation, either directly or through friends, to induce the defendant to return to his bed and board; nor has the defendant offered to return, or made the slightest attempt at reconciliation. The plaintiff, in his testimony, gives as his reason for not making any attempt at reconciliation, that the defendant had brought the former suit for divorce against him, and had made charges therein which were false; and the defendant gives no substantial reason for refusing to return to him, except the ill-treatment which induced her original departure.

1. It is perceived that the present action is grounded upon the allegation that the defendant has absented herself from the plaintiff without a reasonable cause for the space of one year, within the meaning of section 2174, Revised Statutes. It is urged on behalf of the plaintiff that the reasonable cause mentioned in this statute, which will justify a permanent separation of a wife from her husband, or husband from his wife, must be such a cause as would, under some other clause of the same section, constitute a ground of divorce. In Gillinwaters v. Gillinwaters (28 Mo. 61), it was said by Scott, J., in giving the opinion of the court: “The conduct of a husband towards his wife may be such as would warrant her in leaving him, although it would not entitle her to a divorce.” Although that may have been an obiter dictum, as the learned counsel for the plaintiff argues; yet we do not feel at liberty to hold that a distinct expression of doctrine which is found in an opinion of the supreme court is not the law, unless we find that it is distinctly overturned by what is held or said in a subsequent decision of the same court. In Hoffman v. Hoffman (43 Mo. 547), the case resembled somewhat the case now before us. The action was brought by the husband for divorce on the ground of absence, under the statute. The wife, in a cross-petition, set up cruelty as an excuse for the absence. The court, after discussing at some length the doctrine of recrimination, used this language: “The least that can be required, if we would make the provisions of the statute harmonize with the principles of the law in other respects, would be to compel the parties to come into court with hands so far clean, at least, that the opposite party is not entitled to the same redress from them. If both parties have a right to divorce, neither party has. The court must discriminate between them; must say which is the injured party, and which is entitled to relief. Neither the legal inference can be drawn as to both, nor the remedy applied to both.” Further on, in the same opinion, this language is used: “In cross-petitions, or in petitions by one party, the court is bound to look into the conduct of both husband and wife; and if the party seeking a divorce has been guilty of conduct that would entitle the opposite party to one, he or she must fail, notwithstanding the evidence might otherwise be sufficient. This rule does not apply to conduct, however reprehensible, that would not entitle the other party to a divorce. His or her conduct must come within some of the cases enumerated in the statute.” There may be a difficulty in reconciling the views expressed in these two cases, and we shall not attempt to do so, because the facts of this case disclose a ground which places it outside the doctrine of the latter case, and which, in our opinion, renders it impossible to extend to the plaintiff the relief which he seeks. The judgment of the circuit court granting him a divorce, recites that he is an innocent and injured party. Since the act of March 12, 1849, it has not been necessary, in order to entitle the plaintiff to a divorce, that he should be found to be an innocent as well as an injured party, the word innocent having been omitted from the statute as then amended. What the legislature meant by omitting the word innocent, is a matter of conjecture. It may have been because it had been held, or supposed, that a spouse whose offence had been condoned, was not an innocent party. However this may be, it was said by the supreme court in Hoffman v. Hoffman, (43 Mo. 547, 549), that “the statute should receive the same construction in this respect as before the change; at least no better character should be required of a party seeking a divorce, and we are not inclined to allow it to a person sustaining a worse one.” It was in the present case, at least, necessary for the court to find and adjudge that the plaintiff was an injured party; but in our opinion the record does not sustain this finding. It clearly appears from the record that, while he may not have offered such indignities to her as justified her departure and her continued absence from his abode, yet he did impose upon her such gross indignities as placed him very much in the wrong. It was a second marriage, and he had seven children living by a former wife. Soon after the marriage he displaced the defendant as mistress of...