Hemphill v. Quigg, 48674

• Decision Date: 12 February 1962
• Docket Number: No. 1,No. 48674,48674,1
• Citation: 355 S.W.2d 57
• Parties: Rennie HEMPHILL, by and through her guardian, Charles F. Burns, Appellant, v. Rosa Mae Hemphill QUIGG et al., Respondents
• Court: Missouri Supreme Court

Page 57

355 S.W.2d 57

Rennie HEMPHILL, by and through her guardian, Charles F.

Burns, Appellant, v. Rosa Mae Hemphill QUIGG et al., Respondents.

No. 48674.

Supreme Court of Missouri, Division No. 1.

Feb. 12, 1962.

Motion for Rehearing or to Transfer to Court en Banc Denied

March 12, 1962.

Rex Titus, Joplin, for appellant.

Clarence Craig, James E. Brown, Emerson Foulke, Joplin, for respondents.

COLL, Commissioner.

This is the second appeal in this case. On the first, Hemphill by and through Burns v. Hemphill, Mo., 316 S.W.2d 582, the trial court's dismissal of plaintiff's petition on the ground, inter alia, that it failed to state a claim upon which relief could have been granted was reversed and the case remanded for further proceedings. As disclosed by the former opinion the action was and is one by an insane woman residing in Oklahoma, through her duly qualified and acting guardian, whereby she seeks in count 1 to have a 1942 Missouri divorce decree, obtained by her then husband Roy Hemphill, declared void and, in count 2, an accounting of personal assets in the estate of Roy Hemphill, deceased, and a declaration of the interests of plaintiff and defendants, including Rosa Mae Hemphill Quigg, who, ostensibly at least, married Roy Hemphill in 1946, in certain real estate. We held on the former appeal that, as a matter of law, only one paragraph of the allegations asserting reasons for the invalidity of the divorce decree could constitute a sufficient basis for declaring the judgment void, for the reason that all other allegations were of matters pertaining to the merits of the cause upon which the judgment of the court was rendered and did not allege fraud in the procurement of the judgment which was extrinsic or collateral to the matters which were or could have been adjudicated in the divorce proceedings. The paragraph of the petition which stated a claim for relief, as summarized by the court was (316 S.W.2d 587): that the guardian ad litem appointed to represent present plaintiff, the defendant in the divorce suit, 'failed to communicate with his ward or any of her relatives or friends or to notify any of such persons as to when the cause was to be heard; that he failed to make any investigation whatsoever concerning the facts and circumstances involved; and did not act in the interest of his insane ward but solely in accommodation of Roy Hemphill and his counsel.' Upon remand the case was tried on the foregoing averments.

Rennie Hemphill, present plaintiff, married Roy Hemphill in 1916. Most or all of their married life was spent in Commerce, Oklahoma. There were four children born of the marriage, the oldest, Joe, deceased at the time of the present trial, and the youngest, Jack, who was born in July 1925. On January 8, 1926, Rennie, then 26 years of age, was admitted to an Oklahoma state hospital for the insane, her illness being diagnosed as schizophrenia, catatonic type. Apparently, since her admission, continuously, and at trial time, there was no prospect for her recovery.

On March 4, 1942, Roy filed a suit to divorce Rennie in the Circuit Court of Jasper County, Missouri. The petition alleged, inter alia, that he and defendant had lived together as husband and wife since their marriage in 1916 'until the ___ day of January, 1922' and that defendant had offered him such indignities as to render his condition intolerable. The circuit judge's docket disclosed that on April 13, 1942, a guardian ad litem was appointed for defendant and, on April 14, his answer was filed which admitted the marriage and that plaintiff and defendant had lived together as husband and wife until the ___ day of January 1922, and denied every other allegation and demanded strict proof thereof. On April 16, 1942, the trial court granted plaintiff a divorce as prayed and allowed the guardian ad litem a fee of $15. (Roy Hemphill had theretofore in December of 1941 filed an identical petition for divorce in the same court and, on January 8, a guardian ad litem, a different person than the guardian in the subsequent suit, was appointed. On January 10, 1942, a decree of divorce was granted but shortly thereafter was set aside by the court on its own motion as void 'Due to short Service.')

On August 1, 1946, more than 4 1/2 years after his divorce from Rennie, Roy married present defendant Rosa Mae Hemphill Quigg. Roy died on December 12, 1955, and this action was filed on February 10, 1956.

At the present time the guardian ad litem, an attorney 72 at trial time, was called as a witness by plaintiff and testified that the circuit judge who appointed him guardian, had talked with him a few weeks before he (the witness) consented to act and that he had made his investigation, as we infer, by the time of his formal appointment; that the judge advised him that there had been a previous Hemphill divorce case but did not tell him any details concerning it; that he talked with the attorney who had been the guardian ad litem in the prior case in which the decree had been set aside; that he had known the Hemphill family quite well and had theretofore seen Rennie Hemphill but had not been personally acquainted with her; that prior to filing his answer, he talked with certain people in Joplin concerning the then condition of Rennie Hemphill; that, among others, he talked with Joe Hemphill, then a grown man, the oldest son of Roy and Rennie Hemphill; that Joe told him that his mother had no property and that she had gone 'plumb berserk' after the baby was born and couldn't thereafter pull herself together; that Joe also had told him that he, the witness, could not see his mother if he went to the hospital and there was no use to go and that he (the witness) had tried to see a patient in the same hospital in connection with another case and had been refused permission. The guardian testified further that he was present at the trial, asked some questions on cross-examination, as did the trial judge, and that it was shown at the trial that the indignities alleged occurred prior to the birth of Rennie's son Jack. He further testified that he had correctly stated in a deposition that he had not inquired as to the exact date when Rennie's insanity started; that he did not investigate to find out when they had stopped living together or what their relations were while they lived together; that he could not recall at the present trial what the testimony was with respect to whether Roy Hemphill testified at the divorce trial that he and Rennie were separated when she was pregnant with Jack; that he did not go to Commerce, Oklahoma, to question persons who resided in the same community as Roy and Rennie when they lived together, and that he did not go to the Oklahoma hospital or talk with anyone connected with the hospital about the case.

It was conceded that the answer filed by the guardian ad litem and the petition filed by Roy Hemphill's attorneys were prepared by the same typist on the same typewriter and on paper from the same box. The typist, Roy's attorney, and the guardian all testified that the offices of the attorneys who prepared the petition and of the guardian were on the same floor of the same building; that neither of Roy's attorneys had a stenographer; that the guardian did have a stenographer who often did work for plaintiff's attorneys on her regular employer's typewriter. The stenographer testified that the divorce petition was dictated by one of Roy's attorneys and she typed it on her typewriter. The guardian testified that he dictated the answer on the date shown.

One of the two attorneys for Roy Hemphill (the other was deceased at the time of the present trial) testified that Roy was the only witness at the trial of the divorce case; that Roy had testified that he and Rennie separated and ceased living together as husband and wife shortly after she became pregnant with Jack; that the trial judge examined Roy when he was on the witness stand at the divorce trial as to when Rennie first became ill; that Roy had said that 'they' noticed that Rennie became ill some little time before Jack was born.

There was other evidence by relatives and neighbors of Roy and Rennie that her mind began to get bad at the time Jack was born; that they noticed something was wrong when Jack was three months old.

Without detailing the testimony of each of the other witnesses, suffice for present purposes to say there was substantial evience adduced by plaintiff to the effect that Roy and Rennie lived together as man and wife until Roy took Rennie to the hospital on January 8, 1926, and that they lived together as man and wife thereafter for a period of five or six weeks in January and February of 1927 when Rennie was temporarily released from the hospital. The evidence to that effect consisted of the oral testimony of the Hemphills' relatives and neighbors and there was a transcript of the testimony of certain witnesses, including Roy Hemphill, at a 1939 'dower' hearing in the Circuit Court of Jasper County at which duly appointed commissioners were determining whether to recommend to the court that Roy Hemphill be permitted to give a lot to his son Joe for the purpose of building a home thereon, wherein Roy said that he and Rennie lived together as husband and wife 'at the time she went to the hospital.' That transcript was on file in the Jasper County Circuit Clerk's records.

Plaintiff also adduced the testimony of Doctor Hayes, a psychiatrist at the Oklahoma hospital, who was there at the time of Rennie's admission and had been there continuously since. He testified that Rennie would not have been able to have consulted with an attorney or guardian or to have assisted such a person in the defense of a divorce action at any time since she had been admitted to the hospital; that the following from the allegations of indignities contained in Roy's petition for divorce would be a good description of Rennie's condition when she was...