Forbis v. Forbis, 7337

• Decision Date: 08 January 1955
• Docket Number: No. 7337,7337
• Citation: 274 S.W.2d 800
• Parties: Lela Mae FORBIS, by her guardian, Joel Davis, Plaintiff-Respondent, v. Jim S. FORBIS, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 800

274 S.W.2d 800

Lela Mae FORBIS, by her guardian, Joel Davis, Plaintiff-Respondent, v. Jim S. FORBIS, Defendant-Appellant.

No. 7337.

Springfield Court of Appeals, Missouri.

Jan. 8, 1955.

Motion for Rehearing or to Transfer Overruled Jan. 25, 1955.

Sater & Monroe Monett, Roy Coyne, Joplin, for defendant-appellant.

Ruark & Ruark, Neosho, for plaintiff-respondent.

STONE, Judge.

In this suit for separate maintenance, defendant appeals from the judgment directing him to pay $100 per month to plaintiff. In her amended petition plaintiff alleged that she and defendant 'first entered into a common law marriage in * * * 1933' which was 'legally consummated by legal ceremony on the 12th day of February, 1951'; that plaintiff and defendant lived together as husband and wife from 1933 to 1952, when 'the defendant cast the plaintiff out of the home'; that defendant 'caused an affidavit to be signed declaring that she was of unsound mind and thereafter attempted to have plaintiff sent to an insane asylum'; 'that after her discharge on such occasion the defendant has refused to permit the plaintiff to return to said home'; and that, 'after having cast the plaintiff out,' defendant has failed and refused to support and provide for her.

In his answer defendant admitted 'that he and the plaintiff were married on the 12th day of February, 1951, and continued to live together until * * * 1952' but denied all other allegations in the amended petition. After most of the evidence had been taken, defendant filed an amended answer in which 'by way of cross-complaint' he alleged that 'the plaintiff * * * has introduced testimony disclosing that at the time of the entering into such alleged marriage ceremony * * * the plaintiff was insane,' pointed out that 'under the statute (Section 451.020) an insane person cannot enter into a marriage contract,' and prayed for a decree 'declaring the marriage * * * null and void.' (All statutory references are to RSMo 1949, V.A.M.S.) Defendant here presents two primary contentions, i. e., that the marriage of February 12, 1951, was by reason of plaintiff's alleged insanity 'absolutely prohibited and void,' and that 'plaintiff did not show an abandonment by the defendant and such state of facts as would warrant a judgment for separate maintanance.'

Prior to their ceremonial marriage on February 12, 1951, plaintiff and defendant had been 'living together' and 'occupying the same bed' for about fifteen years; but, plaintiff's several offers of proof pertaining to that period were denied by the court because common law marriages contracted after 1921 are not recognized in Missouri. Laws of 1921, p. 468, Section 451.040(5). The incident, which led to institution of the insanity proceeding mentioned in plaintiff's amended petition, occurred on January 2, 1952, and was described thus by defendant: 'I was reading in the front room * * *. She begin pecking me in the face * * * she didn't peck me hard, so I went in the kitchen and she kept on and went back in the bedroom and come around where I was reading again and she kept doing that. I think, 'I will get on my shoes and get out.' It was * * * awful cold, so I got on one overshoe and * * * I started to put on the other one and she jerked it out of my hand and hit me in the head with something. It kind of addled me a little and she grabbed a butcher knife and started at me. I jumped out and run.' He stayed that night with Herb Griffith. On the following day, defendant went to T. M. Griffith, plaintiff's father then 82 or 83 years of age, and 'told him about the deal.' Then, 'we come up here to the sheriff's office' and 'we told the sheriff he would have to do something with her.' The information filed that day in the probate court, charging that plaintiff was 'insane' and 'dangerous to the safety of the community by being at large,' was signed by plaintiff's father. Upon the warrant issued, plaintiff was arrested and was confined overnight in the county jail.

Plaintiff, two of her brothers, her counsel and defendant appeared in probate court on January 4, 1952, and the sanity hearing set for that date was, 'for good cause shown, * * * continued indefinitely.' On February 25, 1952, this insanity proceeding was dismissed. Plaintiff's brothers testified that defendant had stated in probate court on January 4, 1952, that 'he didn't want her (plaintiff) back' and that 'he asked that the (probate) court keep her away * * * from his home.' According to defendant, he 'didn't have a word to say' in probate court until the others left, when 'I did ask the judge, 'What will I do now if she comes back out there?', and he says, 'Call the sheriff--he will take her away.'' Plaintiff left the probate court on January 4, 1952, with her brothers, and from time to time thereafter she lived in one of their homes, or with her father, or alone in the rooming house of Mrs. Ruby Edwards (from April 1 to June 19, 1952), or alone in a separate two-room apartment (for five or six months prior to trial in November, 1953). For a period of about two months prior to May 19, 1953, plaintiff was in Robinson Neurological Hospital in Kansas City, Missouri, where she was given 'shock therapy'. On July 3, 1953, plaintiff was adjudicated as 'a person of unsound mind' in the Probate Court of Jasper County; and on July 13, 1953, Joel Davis was appointed as 'guardian of the person and estate' of plaintiff. This suit has been prosecuted thereafter by the guardian on behalf of his ward. Section 458.310; Redmond v. Quincy, O. & K. C. R. Co., 225 Mo. 721, 126 S.W. 159, 161(1).

The only medical witness was Dr. Wm. T. McNew of Carthage, a general practitioner who, however, had done 'some work in a mental institution in 1934.' This witness, who had been plaintiff's attending physician for 6 1/2 years prior to trial, 'had treated her primarily for organic diseases (not named or described) rather than mental illness.' At the request of her brothers, Dr. McNew had examined plaintiff at the county jail on the morning of January 4, 1952. His opinion was that 'although she was of unsound mind she was not violent' and that there was no reason to confine her. When asked 'what particular type of mental disorder she is afflicted with,' Dr. McNew replied 'I think (she is) the mixed type schizophrenic.' Although he found this 'very difficult * * * to explain,' he said that 'she is definitely mixed up on some things--her reactions,' but that he had never observed any tendency to violence or any persecution complex. Without objection, Dr. McNew commented that 'I agree with the neurologist who saw her * * * as of last May (1953),' and then expressed his (McNew's) opinion that 'she is able to carry on in the community without being confined in the hospital.' The doctor frankly stated on cross-examination that, in his opinion, plaintiff had 'become mentally ill * * * much before 1951' and that 'for years' she had been 'a mental problem,' but painstaking perusal establishes that his testimony went no further than this with respect to plaintiff's mental condition prior to January, 1952.

Since defendant pleaded no 'special or affirmative matter of a recriminatory nature,' his general denial of plaintiff's cause of action afforded no basis for evidence of alleged misconduct by plaintiff offered in justification of defendant's action. Farley v. Farley, Mo.App., 181 S.W.2d 671, 674(5-7). However, over objections of plaintiff's counsel predicated not only on that principle but also on the well-established general rule that conversations between husband and wife, when others are not present, constitute confidential communications and as such are privileged and inadmissible in evidence [Section 491.020; Allen v. Allen, Mo.App., 60 S.W.2d 709, 711(1); McPheeters v. McPheeters, 207 Mo.App. 634, 227 S.W. 872, 873(1)], considerable testimony otherwise inadmissible was received solely 'on the theory of (it) going to the question of her (plaintiff's) mental capacity.' Although we have considered carefully the evidence so admitted, we do not extend this opinion by detailed statement thereof because all of such evidence (if competent) pertained to alleged statements or incidents closely preceding institution of the insanity proceeding on January 3, 1952, and for the purposes of this opinion we are assuming, in accordance with defendant's insistence, that plaintiff was of unsound mind at that time.

However, it by no means follows that the ceremonial marriage of February 12, 1951, was 'prohibited and void' under Section 451.020. For, whether the parties to a contract of marriage are mentally competent vel non to enter into that contract must be determined as of the date of the marriage [Henderson v. Ressor, 141 Mo.App. 540, 126 S.W. 203, 208(2); Westermayer v. Westermayer, 216 Mo.App. 74, 267 S.W. 24, 26(2); Smoot on Law of Insanity, Section 409, p. 339]; and, evidence concerning the mental condition of either party prior or subsequent to such date is of probative value only insofar as it raises a reasonable inference as to the mental condition of such party at the time of marriage [Glover v. Bruce, Mo., 265 S.W.2d 346, 352(2); Smith v. Fitzjohn, 354 Mo. 137, 188 S.W.2d 832, 833-834(3, 4); Walter v. Alt, 348 Mo. 53, 152 S.W.2d 135, 142(10)].

That plaintiff was of unsound mind on January 4, 1952, raises no inference or presumption, upon the record before us, that the same mental condition existed on February 12, 1951. For, although a showing of the existence at one time of a certain condition of a continuing nature permits of a presumption that such condition continues to exist until the contrary is shown [Donnelly Garment Co. v. Keitel, 354 Mo. 1138, 193 S.W.2d 577, 581(2); Ruckels v. Pryor, 351 Mo. 819, 174 S.W.2d 185, 198-199(7); Missouri Power & Light Co. v. City of Bucklin, 349 Mo. 789, 163 S.W.2d 561, 564(2)], the general rule is that proof of present existence of a condition standing alone is not...