Larrabee v. Larrabee

• Decision Date: 19 June 1928
• Docket Number: No. 20244.,20244.
• Citation: 7 S.W.2d 420
• Parties: LARRABEE v. LARRABEE.
• Court: Missouri Court of Appeals

7 S.W.2d 420

LARRABEE v. LARRABEE.

No. 20244.

St. Louis Court of Appeals. Missouri.

June 19, 1928.

Rehearing Denied July 6, 1928.

Appeal from St. Louis Circuit Court; Charles W. Rutledge, Judge.

"Not to be officially published."

Suit by Orley L. Larrabee against Tillie G. Larrabee. Judgment for plaintiff, and defendant appeals. Affirmed.

Jul. Anderson and Oscar J. Moberg, both of St. Louis, for appellant.

Igoe, Carroll, Higgs & Keefe and James K. Moran, all of St. Louis, for respondent.

BECKER, J.

The husband, plaintiff below, obtained a decree of divorce from the defendant on the ground of indignities.

As to the pleadings, we note that the defendant did not file a cross-bill, but in her amended answer, besides denying the charges laid in plaintiff's petition, set up a charge of indignities against the plaintiff on the theory that proof thereof by her would warrant refusing a divorce to plaintiff on his petition as not being an innocent party.

It is here urged by counsel for the wife that plaintiff below failed to make out a case entitling him to a decree of divorce, and also that, upon the testimony adduced on behalf of the defendant, the plaintiff should have been held not to have been an innocent party.

We readily agree with counsel for appellant that it needs no citation of authorities that under our statute, before entitling a party to a decree of divorce, the party seeking it must show that he is not only the injured but also the innocent party, and that in divorce cases an appellate court will examine the evidence for itself and draw its own conclusions therefrom, not being bound by the finding of facts made by the trial judge. As to the latter proposition, however, and particularly where there is a conflict in the testimony, the judge who tried the case is in the better position to judge of the weight of the evidence, as he sees the witnesses, hears them testify, observes their bearing, ascertains their bias, or want of bias, and their disposition to speak the truth, and an appellate court will accordingly give some deference to the conclusions of fact of the trial judge.

Our reading of the record has brought us to the conclusion that plaintiff has adduced much substantial testimony and sufficient to entitle him to a decree of divorce on the ground that the indignities proven were tantamount to a species of mental cruelty, and that the testimony adduced on behalf of the defendant cannot be held in law to prove plaintiff not the innocent party.

We are satisfied from the record that each of the parties to this action is respectable and of good personal reputation. They were married in 1903, and lived together until 1926, and have four children ranging in ages from 17 to 22 years.

According to the husband's testimony, through all the years of his married life he has been an employee of the government post office department, and with the exception of the first few years he has always turned over to his wife his pay check and permitted her to conduct the household and family affairs as she saw fit, and in the early years of their marriage, when his salary from the post office was meager, he put in his Sundays in doing jobs of wall paper hanging, and at nights, during the week, attended the meetings of the First Regiment and did clerical work in order to make additional money; that for some time prior to their final separation in May, 1926, his salary from the post office department was $2,300 per year, and that in addition thereto he had a pension of $20 per month as a Spanish American War veteran, and received about the same sum for his services as secretary to a Spanish American War Veterans' organization. He testified that the last 18 or 20 years of their marriage was one continuous series of arguments; that his wife was unjustifiably jealous, and repeatedly, without cause, in the presence of the children, accused him of going with and associating with other women and often in their presence called him a "chippy chaser," and a "dirty s. o. b.," and other vile names; that on innumerable occasions, covering a period of many years, when he was a member of an organization which met on stated occasions at night, upon his return from such meetings she would manifest a violent temper, berate him, and call him names; that often in the presence of the children she has told him that she could get along without him, that he could leave whenever he wanted to, and that it was her wish that she some time would kill him; that in May of 1926 he was one of a detail to decorate the graves of deceased soldiers, and, on returning to the home, his wife, in the presence of the children, started fussing with him, stating that she wished it were he who was dead so she could decorate his grave with stones; that on still other occasions, either in the presence of the children or others, she had stated that she wished that plaintiff was in hell; that, even when he would tell her where he was going, she would not believe him, and would telephone to the place that he had gone to verify his statement, and at other times she would follow him to the place that he stated he was going; that finally, in ...