Johnston v. Johnston

• Decision Date: 01 April 1924
• Docket Number: No. 18303.,18303.
• Parties: JOHNSTON v. JOHNSTON.
• Court: Missouri Court of Appeals

260 S.W. 770

JOHNSTON v. JOHNSTON.

No. 18303.

St. Louis Court of Appeals, Missouri.

April 1, 1924.

Appeal from Circuit Court, Clark County; N. M. Pettingill, Judge.

"Not to be officially published."

Action by Fannie R. Johnston against Andrew L. Johnston. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions.

John M. Dawson, of Kahoka, for appellant. Charles Hiller and T. L. Montgomery, both of Kahoka, for respondent.

BRUERE, C.

This is a suit for divorce brought by the wife on account of indignities alleged to have rendered her condition intolerable and cruel treatment alleged to have endangered her life and health. The answer admits the marriage, denies the other allegations of the petition, and sets up a cross-bill in which the husband prays to be divorced on the ground of indignities alleged to have rendered his condition intolerable. The reply denied generally the charges contained in the answer and cross-bill. In the trial below the court found for the plaintiff in her petition and against the defendant on his answer and cross-bill, decreed her absolute divorce from defendant, the care and custody of her infant child, $2,500 alimony in gross, and $300 per year for the support and maintenance of said minor child. From this decree the defendant appeals.

The specific allegations of indignities and cruel treatment set up in the petition are as follows:

"That the defendant continually and without provocation quarreled with plaintiff, at times becoming so enraged at plaintiff that he threatened her life, cursed and abused her, using vile epithets and calling her vile names; among other names he frequently called her a `bitch': at diverse times defendant, without provocation, threatened to scald plaintiff, threatened to kill her, and threatened to break glass jars over her head. On one occasion defendant threw up a window in the house where plaintiff and defendant lived and theatened to throw plaintiff out of the window. Defendant frequently accused plaintiff of committing crimes, charged her with stealing, and frequently called her a liar. That defendant failed and refused to provide and furnish necessary clothing and food for plaintiff and their infant child, and refused to permit plaintiff to visit her friends and relatives. Plaintiff says that on the ___ day of August, 1922, defendant flew into a rage at plaintiff without excuse or provocation and struck plaintiff twice with his fist in the face and threatened to kill her."

The defendant assigns for error that the evidence is insufficient to justify a decree for the plaintiff.

The evidence shows that the parties were married in June, 1916, and lived together until August 15, 1922. The plaintiff, much younger than the defendant, was at the time of the marriage a widow, and employed as a cashier in a store at Kahoka, Clark county, Mo. The defendant is a wealthy and respected farmer of said county. His acquaintance with the plaintiff began in the summer of 1916, two months previous to his marriage to her. After the marriage the couple lived together on the husband's farm, in Clark county, Mo., until August 15, 1922.

The evidence introduced, on the part of the plaintiff in support of the indignities and cruel treatment set up in the petition is scant, and not convincing. It seems that at the trial below the plaintiff was more anxious to prove that the defendant was a man of wealth, and well able to pay Substantial alimony, than to establish the grounds of divorce set up in her petition. Many witnesses were called by the plaintiff to prove the allegation in the bill that the defendant was worth $40,000, but no evidence was adduced by the plaintiff touching the indignities and cruel treatment charged against the defendant save her own testimony. As to said indignities and cruel treatment she testified, as follows:

"At first my husband took my part and was good, and then he changed. He was good to me when we lived in the little house. He cursed and quarreled and struck me twice the night before I left. He called me things men have knocked each other down for. He would be enraged, shake his fist in my face, and he looked like a wild animal ready to spring. I was afraid. He made threats, and I left for that reason. The night before I left he struck me in the face and once on my forehead, and said he would strike me but once more, and I would be cold. This was on August 14, 1922. We were on the back porch, and I came in the house and talked to him, and asked him if he couldn't control his temper on account of the baby—that she couldn't be raised in an atmosphere like that—and that enraged him. The next morning I left. I went to McKinney's and stayed there that night, and got her son to bring me to town. I left him because he threatened my life, and I was afraid of him. I remember one time he threatened to throw me out of the window. I could not say just when that was. It was early in the summer or spring of 1922. We had been down and got some groceries, and got some prunes and bananas. I was busy at the cabinet, and he was sitting in the room. I picked up the sack of bananas, and though it was prunes. He suggested that he weigh them, and I handed them to him, and he said I handed him the bananas instead of the prunes. I told him I thought I gave him the prunes, and he said I handed them to him so he would go and jump on Mr. Bell. I said I didn't; that I thought they were the prunes. He said I couldn't talk to him like that; that he would throw me out of the window."

On cross-examination she testified that her husband struck her because she wanted to examine a fruit jar which he had and refused to give her. She further testified that she did not know whether he struck her hard enough to leave any mark on her.

The defendant testified that he always treated his wife with kindness and affection, and in this he was corroborated by disinterested witnesses. He strongly denied striking his wife; and, as to the difficulty testified to by her and which occurred on the evening preceding the day on which she left her husband, he gave the following account:

"On the evening of the 14th of August I came in with a load of oats, just before sundown. I was talking to her about her trip to Mrs. Lovelace's. I went back and unloaded the oats until dark; I did my feeding, and came in, and as I ate my supper the clock struck 11. Just as I finished she said, `Here is a jar, and it is slivered,' and for me to see if the baby could get any glass. I took the jar and examined it, and pulled out a piece of broken jar. She placed it on a saucer. She came and examined and took out another piece. I didn't want her to put it...