Kovar v. Kovar

• Decision Date: 05 February 1946
• Docket Number: 46827.
• Citation: 21 N.W.2d 534,237 Iowa 251
• Parties: KOVAR v. KOVAR.
• Court: Iowa Supreme Court

21 N.W.2d 534

237 Iowa 251

KOVAR v. KOVAR.

No. 46827.

Supreme Court of Iowa

February 5, 1946

George C. Gorman, of Cedar Rapids, for appellant.

Fisher & Fisher, of Cedar Rapids, for appellee.

BLISS, Chief Justice.

The record on this appeal presents a situation and circumstances quite difficult to believe were they not supported by convincing evidence. Plaintiff alleged in his petition, as amended, that his wife, the defendant, without any just cause whatsoever, refused to live with him as a wife should, and thereafter visited upon him numerous acts of cruel and inhuman treatment which impaired his health and endangered his life. More specifically he charged that his wife and daughter, in concert, and by the use of others, wrongfully brought about his commitment to the State Hospital for the Insane at Independence, and by unnecessarily increasing the hardships of his confinement, and wrongfully opposing and delaying his parole and discharge, thereby cruelly and unjustly mistreated him, and unlawfully restrained him of his liberty.

Plaintiff and defendant were married January 8, 1908. They lived together without serious discord until 1936. One child, the daughter Grace, born November 27, 1915, is the only issue of the marriage. At one time he owned three farms, but lost them when the deflation of land values brought on financial difficulties. At the time of the trial in July 1945 he was 69 years old. He had worked hard, and in the years just following 1930 his health was impaired. The circulation of his blood, particularly in his lower limbs, was not good. His feet, ankles and legs would swell. He was crippled with sciatic rheumatism. His wife claimed he had lost his sexual vigor. He had some skin trouble, and a slight tremor of the hands and head from shaking palsy. In 1936 his wife fixed up a bed for him downstairs, and thereafter they slept apart. He submitted to this under protest. His wife and daughter testified that he became irritable, quarrelsome, and faultfinding. On one occasion they said that he threatened but did not strike, his wife with a butcher knife. His wife testified that at another time he put his fingers around her throat, and with hate in his eyes, said that she should be under the ground. Although they are not in accord on the times of these threats, the daughter attempted to corroborate her mother.

The defendant has a maiden sister, Antoinette, by name. She was 72 years old, and a bedridden invalid. Defendant testified that her husband repeatedly took indecent liberties with, and made improper advances upon, this helpless, elderly sister-in-law. Antoinette was not a witness, but defendant, on direct examination, testified: 'Mr. Kovar had always been picking at this invalid sister of mine. Antoinette was sick in bed and my husband would go to her bedroom, tease in a way, get under the covers and act very indecent to her. At one time he wanted her to really have relations with him that weren't the proper thing; this was about a year before he was taken away.'

'* * * The Court: Were you there when that happened? A. I was. Several times, not once.'

On cross-examination she testified: '* * * we generally went to my sister's home on Sunday and often we would go through the week, and about the first thing he did was to go to the bedroom there; my sister was then an invalid in bed very often he had to be made leave the bedroom; that was the same period in which I noticed a falling off of my husband's sexual powers. * * * I saw these incidents in my sister's bedroom, not once but many times. * * *

'The Court: Did this many times in your presence, did he, Mrs Kovar, while you were right there in the room? A. Yes; he--he had to be--very often he had to be led away from there, just made to go.'

The daughter, Grace, also testified to these improprieties, going into considerable detail.

Speaking of these charges the plaintiff testified: '* * * no such incident ever occurred; I never at any time made any improper advances or attempted to handle the person of my sister-in-law; the last time I saw her was Easter week of 1935, and have never been in her home since that time; I have since 1935 delivered articles to her home, but I never went into the house, I left them outside.'

The able trial court, who heard and saw the wife and daughter as witnesses, found the testimony of plaintiff the more credible in all matters. Notwithstanding we lack these advantages of the trial court, we have no difficulty in reaching a definite conclusion respecting the testimony set out above. Standing alone this testimony of the defendant and the daughter is such that we would, indeed, be credulous to attach any weight to it, but when we consider it in the light of all of the testimony and of the entire record, and of the obvious animus and purpose which motivated their entire course of conduct in this matter, it wholly fails to carry any conviction of its truth. The factual matters above noted, and the additional claimed fact, asserted by the defendant, that her husband had a delusion that he was the equitable owner of his ten-acre home, constitute the basis for the charge that plaintiff was insane. We will hereinafter refer more particularly to this 'delusion'.

The daughter Grace, after graduation from his school in 1933, entered the University of Iowa. She had received $1,000 from the estate of her father's father, which had been set aside for her education. She also in part worked her way through the University. She graduated from the University and received a diploma for the completion of a course in 'social administration', on June 9, 1937. Immediately thereafter she participated in a social adjustment in the parental home. Plaintiff testified that she had always been a good girl and their relations were pleasant, but while in school, and, as he believed, at the instigation of her maternal aunts, her attitude toward him changed. She complained that he did not do more for her in a financial way. She spoke of him as a 'dumbbell'. The ten-acre home had been acquired in 1932. It had a house upon it, but most of it was timberland. It had few improvements. By his own labor and that of a hired man, he built a barn 24X32X16 feet, with concrete walls and floor, a garage 20X25 feet, a story and a half, with concrete walls and insulated, with double sliding doors, a hoghouse 14X16 feet, with concrete walls and floor, and insulated, a hen house 20X40 feet, with concrete walls and floors, with heavy insulated roof. He cleared the timber off the land. He tiled it. He drained the basement of the house. He remodeled the house, by putting in quarter-sawed oak in three rooms, and additional windows. He cross-fenced the land. He set out an orchard of plums, cherries, apples, pears, peaches and apricots of between 500 and 600 trees. He planted blackberries, raspberries, stawberries, gooseberries and currants. He put in a grape vineyard. While the fruit trees were maturing he raised and sold garden truck. He said he furnished the money for all of these improvements. There is no denial of this. When Grace graduated from the University, he had eighteen hogs which he was getting ready for market. He had a horse, a cow, a Ford car, and the necessary tools and equipment to carry on his work. He had promising crops, and was marketing fruit and vegetables. At once, upon her return from school, Grace and her mother insisted upon his going to the hospital at the University for treatment. He protested against this because it was not necessary, because the operation of the place needed his attention and labors, and because he could not afford the expense. They told him that they could have him cared for as a charity patient. He submitted finally. On June 11, 1937, two days after her graduation, Grace went with him to Iowa City and arranged for his entry into the general hospital (not the psychopathic hospital). Both returned to Cedar Rapids, and on June 12, 1937, Grace swore to a complaint in the Superior Court of Linn County, which stated that her father 'is afflicted with some deformity or suffers from some malady which probably can be remedied by surgical or medical treatment or care in the hospital of the College of Medicine of the State University of Iowa; and that said patient is in the legal custody of self and that neither said patient nor the person or persons having legal custody of him are able financially to pay for such surgical and medical treatment and hospital care.' Grace procured the necessary order and on the same day returned to Iowa City. Exhibit 7 is a copy of proceedings of the Linn County Relief Department, essential to procure the plaintiff's acceptance as a charity patient in the university hospital. The patient's entry was arranged for the 14th day of June, 1937. Grace returned home and the plaintiff went alone to Iowa City and entered the general hospital on June 15th. Just what treatment, if any, he received does not appear. He apparently went through the clinic. During the first week or ten days that he was there, the defendant, apparently without plaintiff's knowledge, made two trips to the hospital. She saw Dr. A. L. Sahs, of the Department of Neurology, who was in charge of the patient, and supplemented the 'history' of the patient which had been given by Grace. On June 24, 1937 this doctor wrote Dr. John E. Stansbury, of Cedar Rapids, via the defendant. He stated in substance that he was sending her to the doctor 'relative to further plans for Mr. Kovar, who had been under observation since June 15th,' and whose 'history' was that he had undergone a change in his personality and the relatives were afraid of him; that examinations showed him to be defective in memory and insight; there have been minor examples...