Kempf v. Kempf

• Decision Date: 31 October 1863
• Citation: 34 Mo. 211
• Parties: GEORGE KEMPF, Appellant, v. MARGARET KEMPF, Respondent.
• Court: Missouri Supreme Court

34 Mo. 211

GEORGE KEMPF, Appellant,

v.MARGARET KEMPF, Respondent.

Supreme Court of Missouri.

October Term, 1863.

Appeal from Marion Circuit Court.

H. L. Lipscomb, for appellant.

The plaintiff maintains that the demurrer was improperly sustained; that the allegations in said petition constitute a good cause of action, and, if supported by proof, entitled the plaintiff to a divorce. (Hooper v. Hooper, 12 Mo. 354; R. C. 1855, p. 663.)

McCabe & Anderson, for respondent.

I. The demurrer was well taken and properly sustained. The very definition of impotence implies this; impotence may be truly defined as such an incurable incapacity as admits of neither copulation or procreation. (Bish. on Marriage and Divorce, 228.)

The petition does not allege that the defect is incurable; but it should have done so. The burden of proof is on the plaintiff to establish, both that the defect existed at the time of the marriage, and that it is incurable. (Bish. Mar. & D. 235.)

II. A single exhibition of drunkenness, on the part of either husband or wife, cannot with propriety be said to amount to indignities such as to render the condition of either party intolerable.

The statute evidently contemplates a series of acts, all directed to the same end; they must also be offered; no single act falls within its meaning. Indignities is the word used by the lawmakers; hence the demurrer to this second and last cause of action was well and properly sustained by the Circuit Court.

III. The statute will, under certain circumstances, relieve against continued and habitual drunkenness by divorcing the parties; but this drunkenness must have been habitual, and for the space of two years. It is a special cause of diverce, complete in itself, and it is assumed cannot be introduced as proof of any other cause of divorce allowed by the statute. The law has wisely affixed a limit beyond which the offending party may not go in drunkenness; but within this limit the parties must bear with the infirmities of each other.BATES, Judge, delivered the opinion of the court.

This was a petition for divorce. An amended petition was filed, to which the defendant demurred. The demurrer was not sustained, and judgment given for the defendant, from which judgment the plaintiff appealed to this court.

The amended petition stated two causes for divorce. The first was, that at the time of the marriage of the parties “the defendant was, and still is impotent, in that the mouth of the vagina of the said Margaret was and still is closed, so as to prevent copulation. The second was, that the defendant offered to the plaintiff such indignities as rendered his condition intolerable, “in this, that the defendant did, in his presence, and in the presence of others, make herself, by the use of whiskey, (which she, without plaintiff's knowledge, obtained from one Coster,) beastly drunk; and in this, that defendant, in the presence of the plaintiff, as...