Guthery v. Bell

• Decision Date: 07 February 1921
• Citation: 228 S.W. 887,206 Mo.App. 570
• Parties: JAMES A. GUTHERY, an Incompetent Person, by HOMER FEURT, his Guardian, Respondent, v. ELLA BELL, alias ELLA GUTHERY, and N. M. WETZEL, Administrator of the Estate of WILLIAM B. GUTHERY, Deceased, defendants; ELLA BALL, alias ELLA GUTHERY, Appellant
• Court: Kansas Court of Appeals

228 S.W. 887

206 Mo.App. 570

JAMES A. GUTHERY, an Incompetent Person, by HOMER FEURT, his Guardian, Respondent, v. ELLA BELL, alias ELLA GUTHERY, and N. M. WETZEL, Administrator of the Estate of WILLIAM B. GUTHERY, Deceased, defendants; ELLA BALL, alias ELLA GUTHERY, Appellant

Court of Appeals of Missouri, Kansas City

February 7, 1921

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

AFFIRMED.

Judgment affirmed.

Dudley Selby & Brandon for respondent.

M. E Pangburn, W. W. Davis and Frank W. Ashby for appellant.

OPINION

BLAND, J.

This is a suit in equity to annul a marriage claimed to have been entered into by William B. Guthery, now deceased, with Ella Ball.

The petition alleges that shortly before the celebration of the marriage said Guthery was completely paralyzed and unable to speak or make his wants known; that at the time of the pretended marriage ceremony "death had struck said William B. Guthery, he was in a death stupor, the death rattle was in his throat and he was wholly incapable of knowing what he was doing or entering into a marriage contract as said defendant, Ella, well knew." The petition further alleges mental incapacity on the part of the deceased at the time of the alleged ceremony. There was a trial which resulted in a judgment annulling the marriage and defendant Ella Ball, or Ella Guthery, has appealed.

The facts show that William B. Guthery died on the 9th day of March, 1918, in Daviess county, Missouri; that deceased was a farmer living near Jameson and that Ella Ball some years prior to his death came to his house as a housekeeper; that deceased was a man past seventy years of age at the time of his death and had been in bad health for several years prior thereto; that on February 15, 1917, he suffered a slight stroke of paralysis which resulted in his being confined to his home, either in bed or about the premises, until sometime during the latter part of May or the first of June of that year; that on March 9, 1918, deceased suffered from a second stroke of paralysis from which he died. He was married to Ella Ball about 11:00 A. M. on the day of his death which occurred about 7:00 P. M. Ella Ball called in a justice of the peace for the purpose of performing the ceremony.

There was evidence tending to show that after the last stroke of paralysis deceased was unconscious practically all of the time until death and was unable to recognize his friends who called to see him. The doctor who attended him in his last illness testified that he was present attending the deceased at 10:30 A. M. on the day of his death and that at that time deceased was lying on his back with his mouth open; that he, the witness, closed his mouth but it dropped open again. This witness testified that at that time deceased was in a stupor and was dying and had the death rattle in his throat. The physician returned at 4:00 o'clock in the afternoon and at that time there was no change in deceased's condition, deceased continued to be in a dying state; he returned again at 6:45 P. M. and deceased remained in the same condition.

Another witness testified that he visited the deceased at 9:00 o'clock on the morning of the day of his death; that he was a friend of the deceased but that the latter did not know him at that time. Another witness testified that he visited the deceased at 4:30 P. M. of the day of his death and that deceased was dying then and did not recognize any one. Another witness testified that he visited deceased almost daily after his last attack of paralysis; that the first time he saw him after this stroke deceased was in the room lying in the bed on his back with his legs and arms straightened out and unconscious; that there was no time covering this period of his last illness that witness saw deceased that he appeared to be other than unconscious; witness thought that he probably saw the deceased on the day of his death.

The Justice testified that he found Guthery either in a stupor or asleep; that deceased was lying on the bed on his back with his legs out straight and his arms on his body; that appellant raised Guthery up and he shook hands with the justice and in doing so raised his head five or six inches that deceased recognized the justice; that the witness knew that deceased was a sick man and had suffered a stroke of paralysis and the witness wanted to be sure before performing the ceremony that Guthery was capable of understanding the nature of the act, so he called in the nurse and the latter raised the deceased up and put a box upon his knees and gave him a pencil telling him to write his name, which deceased did and at the request of the nurse wrote his post office address. The nurse laid him back on the bed and the justice asked...