Grant v. Grant

• Citation: 157 S.W. 673,171 Mo.App. 317
• Parties: ELIZABETH A. GRANT, Respondent, v. DAVID J. GRANT, Appellant
• Decision Date: 02 June 1913
• Court: Court of Appeals of Kansas

157 S.W. 673

171 Mo.App. 317

ELIZABETH A. GRANT, Respondent, v. DAVID J. GRANT, Appellant

Court of Appeals of Missouri, Kansas City

June 2, 1913

Appeal from Daviess Circuit Court.--Hon. Arch B. Davis, Judge.

Judgment reversed.

John C Leopard for appellant.

(1) A wife is not entitled to relief in an action against her husband for maintenance, when she has left him without his consent or fault, and under circumstances which do not amount to an abandonment by him. Droege v. Droege, 52 Mo.App. 84. (2) A wife is bound to follow the fortunes of the husband and to live where he lives and in the style and manner which he may adopt, and to justify an abandonment of the husband, by the wife, his conduct toward her must have been such as would entitle her to a divorce. Droege v Droege, 52 Mo.App. 84; Droege v. Droege, 55 Mo.App. 481; Owen v. Owen, 48 Mo.App. 213. (3) Respondent is bound by the statement in her petition that defendant had furnished half of the food that was eaten and all evidence produced by plaintiff to the effect that defendant, during all the time she lived with him, had furnished practically nothing in the way of food, should be disregarded. She is bound by the admission. Pike v Martindale, 91 Mo. 286.

Dudley & Selby for respondent.

(1) While it is true that in equity cases, the appellate court has jurisdiction to review the facts as well as the law, the usual practice is to defer largely to the finding of the chancellor when the evidence is very conflicting. The reason for this deference rule is because of the superior advantages possessed by the chancellor for weighing the evidence and judging the credibility of the witnesses, and this is more especially true when, as in this case, the witnesses here testified orally. Wyrick v. Wyrick, 162 Mo.App. 732; Foster v. Williams, 144 Mo.App. 227; Danforth v. Foster, 158 Mo.App. 94; Rood v. Mining Co., 157 Mo.App. 410; Mining Co. v. Coyne, 164 Mo.App. 507. (2) Where defendant's conduct is such as to render plaintiff's condition intolerable, or unbearable, she can leave him and maintain her suit for separate maintenance. McGrady v. McGrady, 48 Mo.App. 668; Kurz v. Kurz, 119 Mo.App. 53; Palster v. Palster, 145 Mo.App. 606; Lindenschmidt v. Lindenschmidt, 29 Mo.App. 295. (3) There is nothing in the statute that requires that there shall be the same particularity of allegation in actions of this character, as in actions for divorce and a defendant would certainly know that where a wife seeks to justify her leaving him, all his conduct toward her and his treatment of her would be brought in issue and where she says in her petition--among other charges therein--"and in addition to being thus deprived, she was constantly upbraided and quarreled at and found fault with by the defendant, etc.," it ought to be broad enough to cover her charge that he constantly threw up to her his taunt that she had signed his name to the note at the Farmers Exchange Bank, without his authority. Sec. 8295, R. S. 1909; Munchow v. Munchow, 96 Mo. 553.

OPINION

ELLISON, J.

--Plaintiff is the wife of defendant and brought this action against him for maintenance. She obtained an allowance in the trial court for ten dollars per month, and defendant appealed.

Plaintiff alleges that she left defendant's home for the reason that he mistreated and failed to support her. They were married in 1898 and lived together until she left him in 1909. Each had been married before and each had grown children by their former marriages. These children had married and at the time of separation were living to themselves. Each had property when married, though in an unfortunate move to Texas each lost most of it, though defendant kept his farm (a fairly good one) of about one hundred acres, in Daviess county. Plaintiff remained in Texas for a considerable time after defendant returned to this State. On her return they lived together on the farm, and with the exception of complaints on plaintiff's part of the disrepair and discomforts of the house and of slowness on defendant's part to give her proper money for personal expenses, seemed to prosper. She owned and kept cows and chickens, rather as her separate property. Plaintiff testified that defendant did not contribute as he should towards clothing for her, though she seldom asked him, and that he complained and "fussed" about the feed for her chickens and pasture for her cows. Plaintiff no doubt was industrious. After she returned from Texas she raised turkeys, chickens, pigs and calves, as well as berries and vegetables, and netted about five hundred dollars, which she had at interest. She bought a buggy and used his horse for visits and her comfort. She made a visit to Salt Lake City, and several visits to her married daughter in Nebraska, though she paid for these from her earnings.

There was testimony by plaintiff and by some persons who had visited them, that the house was uncomfortable in the winter. She said the roof leaked, but that defendant had a new one put on. In the course of her testimony she stated that they were buying some stock--that she put in twenty-five dollars and defendant told her "to go to the bank and get the money and tell the banker to sign his name and the banker told me to sign his name and I did so and got the money." This note was for $ 185. Defendant himself got $ 150, signing his own name, making $ 335. She then stated that afterwards defendant accused her of forging his name and "said he had not given her authority to sign it."

Finally "he swore he wouldn't furnish feed for my chickens any longer . . . and I said if I can't even have feed for my chickens there is not much in it for me, and if I have to sell them I will get out while I have the money to get out with . . . I sold my stock and a greater part of my household goods, took some with me. I could not live with him now, even if he would support and care for me as I think he should, because I value my soul; I value my hereafter. I don't think anybody could live with any of them and live a Christian life. I did think I could forgive and still live with him, if he promised to support me, until he accused me of things I never did" (signing his name to the note).

She further testified that after leaving defendant she "went to her daughter's home in Nebraska and stayed two years then came back, went to Jameson and Gallatin and visited old friends and then went to my daughter's at New Hampton, where I have been most of the time since." She further testified that she had a talk with defendant since this action was begun, saying: "He told me one of the neighbors was poisoning their chickens. I told him I wouldn't go out there on the farm and live in all the fuss, for all they had, if it was just deeded to me. He said he would buy a house in Jameson for us to live in; he told me where, and I said I would rather live on the other side of town where there were walks, so I could go to church. I told him he must furnish the house, that I had sold off all my household goods. I said you never did clothe or give me any money, I would have to...