Kindorf v. Kindorf
| Decision Date | 02 December 1913 |
| Citation | 161 S.W. 318,178 Mo.App. 635 |
| Parties | DORA KINDORF, Respondent, v. WILLIAM E. KINDORF, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. William M. Kinsey Judge.
AFFIRMED.
Judgment affirmed.
C. J Anderson for appellant.
(1) The petition in this case is based on Sec. 8295, R. S. 1909. In order to recover, the plaintiff's evidence must bring her within the purview of this section, i. e., abandonment by defendant and refusal or neglect to maintain and provide for her. Sec. 8295, R. S. 1909; Droege v. Droege, 52 Mo.App. 84; Sharpe v. Sharpe, 134 Mo.App. 278. (2) In order to justify an abandonment of the husband by the wife, his conduct towards her must have been such as would constitute the foundation of an action on her part for a divorce. Droege v. Droege, 52 Mo.App. 84; Pierce v. Pierce, 33 Iowa 238; Bishop on Marriage, Divorce and Separation, sec. 1742. (3) It stands admitted that up to the day before the separation defendant always supported his wife and family. Plaintiff bases her cause of action solely on the occurrences of May 13 and 14, 1911. This court should consider and weigh all the evidence in the case, but even if the court should believe that all the evidence offered by plaintiff is true, yet plaintiff would not be entitled to recover in this case. Droege v. Droege, 52 Mo.App 84; Davis v. Davis, 60 Mo.App. 545. (4) This court is not bound by the findings of the judge of the trial court. Davis v. Davis, 60 Mo.App. 545; Droege v. Droege, 52 Mo.App. 84. (5) The amount of the judgment is grossly excessive, is for more than is necessary for the support and maintenance of plaintiff and the minor son George, and is more than defendant could pay and still maintain himself and the minor son Willie. If, therefore, the finding of the trial judge in favor of the plaintiff should be sustained by this court, the amount of the allowance to plaintiff should be reduced. McGrady v. McGrady, 48 Mo.App. 668.
Zachritz & Zachritz for respondent.
(1) A suit for separate maintenance is in the nature of an equitable action, and as in equity cases, the court will defer largely to the finding of the trial court, when the evidence is conflicting. Wyrick v. Wyrick, 162 Mo.App. 723. (2) All legislation relating to wife abandonment is contained in Chapter 77, R. S. of 1909. The only issue of fact that can be properly raised is whether the husband without good cause has abandoned his wife and neglected or refused to support her. Sharpe v. Sharpe, 134 Mo.App. 278. (3) It has been decided, too, under this statute that where the husband's conduct is such as to render the wife's condition unendurable, at his home, she may leave the home without forfeiting her right to maintain an action for maintenance against him. Polster v. Polster, 145 Mo.App. 606; McGrady v. McGrady, 48 Mo.App. 668. (4) A wife leaves her husband with his consent because of torment and insult suffered from the treatment which he offers her, is not bound to return to him, unless he requests her to do so and assures her of protection from a continuance of the wrong. Spengler v. Spengler, 38 Mo.App. 266. (5) Where the husband demonstrates his lack of desire to live with the wife, or affection for her, it is sufficient to make it a case of abandonment. Louis v. Louis, 134 Mo.App. 566. (6) Where a husband strikes his wife, it authorizes her to live separate and apart from him. Propes v. Propes, 171 Mo.App. 407; Kurz v. Kurz, 119 Mo.App. 53. (7) If a husband turns the wife out of doors she has been abandoned. 14 Cyc, 613, 617.
Plaintiff is the wife of defendant, and this action is one for her separate maintenance under the statute. The trial court found the issues for plaintiff, and adjudged that the defendant pay her $ 25 per month, for the support of plaintiff and a minor child; from which judgment the defendant prosecutes this appeal.
The petition averred that, on May 14, 1911, in the city of St. Louis, defendant without cause abandoned plaintiff, and thereafter refused and neglected to maintain and provide for her and two minor children born of the marriage. The answer was a general denial.
Plaintiff and defendant were married in 1894, and lived together as husband and wife until May 14, 1911. Two children were born of the marriage, viz., George Kindorf and William Kindorf, aged, respectively, fourteen and fifteen years at the time of the trial below. It appears that defendant is a cigar maker by occupation, and that Saturday evening, May 13, 1911, he returned from his work and asked his younger son, George, to take certain cards and deliver them at a house some fifteen city blocks distant; that the boy wanted to change his clothing, for the reason that he had been playing ball that afternoon, whereby his clothes had become soiled, and that he did not want to appear upon the street in such condition. It seems that defendant objected to this and insisted that the boy go on the errand at once. The testimony is conflicting as to just what was said, but this is immaterial here. At any rate the defendant took what is referred to in the testimony as a "cat-o'nine-tails" and began to whip the boy. This occurred in the kitchen of defendant's home. It seems that the instrument which defendant used to administer this punishment consisted of a piece of leather fastened to the end of a broom handle; and that he proceeded to whip the boy severely with it. The plaintiff testified that while defendant was striking the boy she said to him: "Will, don't hit him, but talk to him," and that defendant replied: "I am doing this, and if you interfere I will hit you both and put you out." And that defendant did thereupon strike her. Defendant denies that he so struck plaintiff, and testified that plaintiff interfered by catching hold of his arm, saying, "You ain't going to hit him for anything like that."
The difficulty ended by the boy running from the house and going to his grandmother's, where he remained until the next morning. Plaintiff testified that defendant was quarrelsome all that evening. On the following morning he sent his son, William, to get George and bring him home; and when the boys reached home and George sat down in the kitchen, defendant at once came up to him and began to beat him with a rope that he had in the meantime specially braided and prepared for that purpose. The evidence is quite convincing that the defendant brutally and unmercifully beat the boy with this instrument; the testimony of witnesses, who saw and examined the boy shortly thereafter, being to the effect that he was bruised and bleeding about the head, arms, neck, shoulders and body.
The testimony is highly conflicting as to what took place between plaintiff and defendant at this time. Plaintiff testified that the defendant also struck her with the rope, pushed her and the boy out the kitchen door, saying: "I will put you both out," telling them to "go;" and that he offered to pack her clothes and throw them out after her. George testified that, while his father was striking him, his mother came to the door, and the defendant said: that he did thereupon turn and strike the plaintiff as well as his son, pushed them both out the door and told them to go. Seyeral other witnesses, residing in the immediate neighborhood, testified...
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