Koslow v. Taylor

• Decision Date: 14 July 1947
• Docket Number: 40204
• Parties: Sam Koslow v. Laura Taylor, Guardian of Evelyn Koslow, a Person of Unsound Mind, Appellant
• Court: Missouri Supreme Court

203 S.W.2d 433

356 Mo. 755

Sam Koslow v. Laura Taylor, Guardian of Evelyn Koslow, a Person of Unsound Mind, Appellant

No. 40204

Supreme Court of Missouri

July 14, 1947

Appeal from Hannibal Court of Common Pleas; Hon. Roy B Meriwether, Judge.

Affirmed.

Fuller Fuller & Ely for appellant.

(1) This being an equity case, the court must review the record de novo and review the evidence and enter such judgment as the trial court should have done. Andris v. Andris, 125 S.W.2d 38; Kistner v. Kistner, 89 S.W.2d 106; Caffey v. Caffey, 118 S.W.2d 1047; Vincent v Vincent, 123 S.W.2d 86; Pollard v. Pollard, 98 S.W.2d 132; Llewellyn v. Llewellyn, 88 S.W.2d 235; Bassett v. Bassett, 280 S.W. 430; Grove v. Grove, 70 Mo.App. 142. (2) The record in this case conclusively establishes that plaintiff is not and was not an innocent, nor an injured party. Plaintiff must establish both by a fair preponderance of the evidence, and not having done so, his divorce should be denied and his bill dismissed. Miles v. Miles, 54 S.W.2d 741; Lawson v. Lawson, 44 S.W.2d 191; Jones v. Jones, 164 S.W.2d 158; Shumacher v. Shumacher, 14 S.W.2d 519; Pollard v. Pollard, 98 S.W.2d 132; Libbe v. Libbe, 157 Mo.App. 701; Ellebrecht v. Ellebrecht, 243 S.W. 209; Larrabee v. Larrabee, 7 S.W.2d 420. (3) Acts committed while one is insane are not grounds for divorce. Nichols v. Nichols, 31 Vt. 328, 73 Am. Dec. 352. (4) Neither husband nor wife will be granted a divorce where the evidence shows both parties to be entitled thereto. Hogsett v. Hogsett, 186 S.W. 1171; Lawson v. Lawson, 44 S.W.2d 191; Harris v. Harris, 223 S.W. 771; Barth v. Barth, 151 S.W. 769; Wells v. Wells, 82 S.W. 1103.

Rendlen, White & Rendlen for respondent.

(1) The evidence is overwhelming for plaintiff; it was practically all oral; such as was conflicting, as to it the result depends largely on the credibility of the respective witnesses. The decree therefore of the trial court should not be set aside. This court in a case as here defers to the finding of the trial judge. Andris v. Andris, 125 S.W.2d 38, 343 Mo. 1162; Holm v. Holm, 251 S.W. 130; Latta v. Latta, 39 S.W.2d 563; Ridge v. Ridge, 165 S.W.2d 294; Galst v. Galst, 138 S.W.2d 843. (2) In resolving irreconcilable conflict which appear in the testimony, it is particularly meet and proper that the reviewing court should defer largely to the finding of the trial judge, who had the parties and the witnesses before him and therefore was in a far better position than the reviewing court to pass upon the question of their credibility and the weight to be accorded to their testimony. Pickett v. Pickett, 150 S.W. 589; Bova v. Bova, 135 S.W.2d 384; Vermillion v. Vermillion, 130 S.W.2d 195; Venegoni v. Venegoni, 100 S.W.2d 340; Pickrell v. Pickrell, 86 S.W.2d 336; Glenn v. Glenn, 192 S.W.2d 629, also cases under Point (1). (3) The evidence disclosed that the defendant-appellant falsely and without justification charged and accused the plaintiff-respondent of improper association with women and with adultery, not only with Mrs. Doris Sawyer, but she produced one incredible witness, Charles E. Smith, on alleged adultery of plaintiff with an unnamed lewd woman in the Lennox Hotel in St. Louis. The trial court says he did not believe Smith. (4) Plaintiff was not required to submit to constant abuse, nagging, continual bickering, habitual accusations, contemptuous treatment, scornful statements he was a Polish Jew and should be deported, or to gross insults unmerited and unjustified. Trigg v. Trigg, 41 S.W.2d 583, 226 Mo.App. 284. (5) An unmerited contemptuous conduct toward the other which manifests contempt, contumely, or incivility or an act of injury accompanied with insult amounting to mental cruelty are sufficient indignities to authorize a divorce. Hogsett v. Hogsett, 83 S.W.2d 152. (6) These charges being unwarranted and not substantiated by the evidence, amount to cruel treatment, entitling the plaintiff to a decree of divorce. Holm v. Holm, supra, and cases therein cited. (7) Plaintiff, respondent, was entitled to a divorce for each of these several things heaped upon him by appellant and which he long suffered: (a) Profane, obscene and vile names applied to him by defendant. (b) Nagging for years. (c) Interference and bothering him at his work and business; going to defendant's store and harrassing and cursing him wickedly. (d) Charging him with adulteries. For days of trial defendant and her attorneys vigorously sought to make proof thereof. After complete failure now on this appeal say there was no basis of fact for the accusations. (e) Telling others plaintiff was a Polish Jew; referring to him with scorn and contempt. (f) Ordering plaintiff to get out. (g) Ordering the adopted son to get out. Throwing out his clothes and abusing the son and plaintiff. (h) Falsely charging all manner of baseness against plaintiff. Ridge v. Ridge, 165 S.W.2d 294. (8) On the trial appellant did not raise any question of her sanity or mental competency in any way whatsoever. She cannot here. Appellant is bound on appeal by the theory adopted at the trial. She will not be permitted to "blow both hot and cold." Sinclair Refining Co. v. Wyatt, 347, Mo. 862 S.W.2d 353; Carlson v. Wells, 276 S.W. 26; Toeneboehn v. Railroad Co., 298 S.W. 795; Dittmeier Co. v. So. Surety Co., 289 S.W. 877. (9) Matters and questions not presented to the trial court, nor ruled on by it; will not be considered on this appeal, nor will this court concern itself with a question sought for the first time to be raised in an appellate court after an appeal is taken, as is attempted here. Spotts v. Spotts, 331 Mo. 977, 55 S.W.2d 977; City of Springfield v. Smith, 322 Mo. 1129, 19 S.W. 1; Duffy v. McCaskey, 134 S.W.2d 62, 345 Mo. 550; Snyder v. Am. Car & Foundry Co., 322 Mo. 147, 14 S.W.2d 603; Claflin v. Sylvester, 99 Mo. 277; Sec. 1227, R.S. 1939. (10) "No exception shall be taken on any appeal . . . to any proceeding in the circuit court, except such as shall have been expressly decided by that Court." Sec. 1227, R.S. 1939. (11) Divorce may be obtained for acts happening prior to alleged insanity, notwithstanding subsequent insanity (if there be such). Fisher v. Fisher, 1 Am. & E. Ann. Cas., 251, 54 W.Va. 146; Schouler, Marriage, Divorce (6th Ed.), sec. 1679; Noellert v. Noellert, 182 A. 427, 169 Md. 559; Duvale v. Duvale, 34 A. 888.

Westhues, C. Bohling and Barrett, CC., concur.

OPINION

WESTHUES

This, a divorce case, was filed in the Hannibal Court of Common Pleas by plaintiff, Sam Koslow, against defendant, Evelyn Koslow. Defendant filed a cross-bill in which she sought a divorce and alimony in the sum of $ 50,000. General indignities was the principal charge made in the petition as well as in the cross-bill. The trial court entered a decree in plaintiff's favor and the defendant appealed. While the appeal was pending defendant was adjudged to be a person of unsound mind and the cause now stands in the name of the defendant's sister, Laura Taylor, as guardian for the defendant.

This case was hotly and vigorously contested. Both parties were represented by able counsel and the transcript, for a case of this nature, is unusually long, containing in excess of one thousand typewritten pages. We will attempt to state the pertinent facts as briefly as circumstances permit. Plaintiff was born in Russian Poland and immigrated to this country in the year 1907, when he was about eighteen years of age. He soon engaged in business, beginning as a peddler of rugs and later dealing in new and second-hand furniture. He was very successful in a financial way, being worth at the time of the trial approximately $ 135,000. Plaintiff's principal business operations were conducted in Hannibal, Missouri, however, he had an interest in a merchandise store in St. Louis in the year 1921. It was during that year that he met the defendant and after a courtship of short duration married her on December 1, 1921. Defendant testified that she had been married before to one Jackson and that her first husband died before she married plaintiff. Defendant was about eight years or so younger than plaintiff. She was a gentile and belonged to the Christian church, while plaintiff was a Jew. No children was born of this marriage. In 1930 they adopted a boy about three years of age. He was given a good education and during the war served in the armed forces. At the time of the trial he was employed in Europe by the United States Government, earning about $ 2400 a year.

The record reveals that the married life of this couple was not a bed of roses. Much of the trouble was due, we think, to the difference in their mannerisms and in their opinions of what was proper or improper. To illustrate, shortly after the marriage defendant's sister was visiting them. During the evening a package of cigarettes fell from defendant's clothing and plaintiff became very angry on discovering that his wife smoked. He stated he did not intend to marry a "Fatima," packed his clothing and left the home staying away for a number of days. Years later the adopted son was the cause of many quarrels. As we read the record, Mrs. Koslow wanted the boy to be polite and mannerly to such a degree that it irked plaintiff. On one occasion plaintiff left home and remained away several days because, as he testified, she treated the boy so mean and was always scolding him. Later the boy was sent to a military school and on another occasion lived at the Y.M.C.A.. The reason assigned for sending him to the military school and also for his living at the Y.M.C.A. was, as plaintiff testified, that the defendant mistreated the boy. However, the record shows that the boy has made good and is on good terms with both his parents.

Plaintiff and defendant accused each other...