English v. English

• Decision Date: 06 June 1911
• Citation: 139 S.W. 814,158 Mo.App. 330
• Parties: URA MAY ENGLISH, Respondent, v. JOHN W. ENGLISH, Appellant
• Court: Missouri Court of Appeals

139 S.W. 814

158 Mo.App. 330

URA MAY ENGLISH, Respondent, v. JOHN W. ENGLISH, Appellant

Court of Appeals of Missouri, St. Louis

June 6, 1911

Submitted on Briefs May 3, 1911

Appeal from Shelby Circuit Court.--Hon. Nat M. Shelton, Judge.

Judgment reversed and cause remanded. (with directions).

Humphrey & Gose for appellant.

The evidence does not disclose any acts or conduct that amount to indignities as contemplated by the statute or as defined in our law. Such indignities as will authorize the granting of a divorce must amount to a species of mental cruelty. Goodman v. Goodman, 80 Mo.App. 281; Holschbach v. Holschbach, 134 Mo.App. 247. Declarations such as "she would leave plaintiff and never live with him again," or "he told her she had better go home," do not amount to indignities as contemplated by the statute. Holschbach v. Holschbach, supra; Cannon v Cannon, 17 Mo.App. 394; Hooper v. Hooper, 19 Mo. 357.

E. M O'Bryen and Jno. D. Dale for respondent, filed argument.

REYNOLDS, P. J. Caulfield, J., concurs. Nortoni, J., not sitting.

OPINION

REYNOLDS, P. J.

On the 25th of November, 1908, plaintiff, then a young woman about twenty years of age, was married to defendant, a young man about twenty-six years of age, both of them having lived in Shelby county practically all their lives, and acquaintances for two years or more before their marriage. Before the marriage defendant had been working on a farm some three miles from where plaintiff resided with her father and mother, the father a farmer in Shelby county. Whether defendant worked on shares or as owner or as a hired man is not clear, but he boarded with the lady who, as we understand, is living on the farm. When the marriage took place between the parties the husband took his wife to this farm and they boarded with this lady, having their own room in the house, but all living together as one family. The parties to this suit lived together as husband and wife until the 11th of July following, or in the language of plaintiff, she lived with defendant "seven months and two weeks." Leaving him she went to the home of her parents and on the 16th day of December, 1909, a little over one year after the marriage, commenced this action for a divorce.

The statutory ground assigned in the petition is that defendant had offered plaintiff such indignities as to render her condition intolerable. The specifications of indignities, summarized, are that a week after the marriage, plaintiff desired to go to her father's home, about three and one-half miles from where she and her husband were living, to visit there with some relatives and that defendant flew into a passion and refused to take her to her father's, and plaintiff being anxious to see her relatives, went to her father's and visited for five hours and returning home found defendant in a bad temper and an ugly mood and that he "sulked for several days;" that afterwards, early in January, 1909, plaintiff was expecting her mother and a lady friend to visit her and told defendant of it, but defendant demanded that she go with him and haul corn and said that her mother could visit on the next day, as he expected plaintiff to work that day, and he compelled her to go with him and haul corn; that she went with him and after she had returned to their home, defendant also returned and was angry and abused her and was cross for several days; that after plaintiff had hauled this corn she wanted to spend the night with her parents but defendant refused to go with her or to take her there or come after her, and told her if she did go she would have to get some one to bring her home. Her brother brought her home and defendant refused to speak to her and appeared angry and was sullen and having prepared himself for church went with the lady with whom they were boarding; that before going he became angry, kicked the chairs over and left plaintiff alone in the house, just before leaving the house defendant saying to plaintiff that he was sorry he got married; that on divers dates since the last named date defendant had become angry without any cause and abused plaintiff and continued his abuse almost to the 23d of June, when plaintiff went to her father's where she had been invited to gather cherries, whereupon defendant became angry, flew into a passion, and said to plaintiff that she had better go back to her father's and stay; that defendant was cross and surly from this time in June until the 11th of July, when she asked him to take her to church; he refused and refused to catch a horse for her and began to abuse her, whereupon she told defendant that she could not put up with his abuse any longer, that she could go home where she would be treated like she was human. In reply to this defendant told her to go and stay. As a further indignity plaintiff charges that besides doing all the housework and attending to raising chickens and looking after milk and butter, defendant made her plow corn, would not furnish her any shoes to wear while doing such work and during the entire period of their married life had purchased less than five dollars worth of wearing apparel for her. There were no children born of the marriage. Plaintiff asks for restoration of her maiden name and for an allowance for support and maintenance.

The answer, admitting the marriage, denies all the other allegations.

The case was tried by the court and, as recited in the decree, the court having heard the evidence, took the case under advisement "and having had the evidence reduced to writing and considered that and the pleadings," rendered a decree dissolving the marriage and restoring plaintiff her maiden name, awarding costs against plaintiff. So far as the record shows, no order was made concerning alimony or maintenance. From this decree defendant has duly perfected his appeal to this court.

We have read with very great care, not once but again, all the evidence in this case as presented in the abstract furnished by counsel.

In all cases such as this, in which the witnesses are before the trial court, heard by the trier and the value of their testimony weighed by him, possibly aided in great measure by the demeanor, conduct and appearance of the witnesses, an appellate court is at some disadvantage. Hence it is exceedingly reluctant to depart from the conclusion arrived at by the trial court. But inasmuch as the laws of our state provide for an appeal in cases of this kind, and the practice in our state is uniform and unvarying to treat them as in equitable actions, while they are statutory, an appeal carries with it the obligation on the part of the appellate court to determine for itself, on the evidence presented, the very right of the matter. With all the consideration that we always give to the conclusion arrived at by the trial court, we are bound, under the law and the duties of our office, to pass on the weight and sufficiency of the evidence in determining the...