McPheeters v. McPheeters
| Decision Date | 14 February 1921 |
| Citation | 227 S.W. 872,207 Mo.App. 634 |
| Parties | EMMA McPHEETERS, Respondent, v. L. B. McPHEETERS, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Mississippi Circuit Court.--Hon. Frank Kelly, Judge.
REVERSED AND REMANDED.
Cause reversed and remanded.
W. C Russell and J. M. Haw, for appellant.
(1) The testimony of respondent as to what the appellant told her concerning his income or the value of his property was a confidential communication that was not admissible, and it was reversible error for the court to permit respondent to testify as to such statement. Berlin v. Berlin, 92 Mo. 201; Moore v. Moore, 51 Mo. 118; Gisel v Gisel, 219 S.W. 664; Gruner v. Gruner, 183 Mo.App. 157. (2) Respondent's testimony nowhere showed or indicated the elements necessary to recovery of a judgment for maintenance and there was no competent evidence offered as to the income or property of appellant, there being a total failure of sufficient proof, the demurrer offered by the appellant should have been sustained at the close of respondent's case. Quinn v. Met. Street R. R Co., 218 Mo. 545, 557. (3) To justify the trial court in granting temporary maintenance and attorneys' fees the plaintiff must at least make a prima facie showing that she is entitled to the relief prayed for in her petition. Scism v. Scism, 184 Mo.App. 543; Long v. Long, 78 Mo.App. 32, 21 Cyc, 1604.
Kelsey Norman and Geo. V. Farris for respondent.
Cox. P. J., not sitting.
Plaintiff, the wife of defendant, commenced proceedings under section 7314, Revised Statutes 1919, to recover for separate support and maintenance. The petition was filed January 10, 1920, in which plaintiff alleged that she and defendant were lawfully married to each other on May 18, 1919, and that plaintiff lived with defendant as his wife from and after said date until August 13, 1919, and that during said time she treated defendant with kindness and affection and discharged all her duties as defendant's wife, but that on said 13th day of August, 1919, defendant abandoned plaintiff without just cause or excuse, and had since lived separate and apart from her, and had failed and refused to contribute anything to her support. Plaintiff further alleged that she had no money or property, and that at the time defendant deserted her he left her without money and without making provision for her support; that defendant owned a large amount of personal property consisting of stock, grain, farming implements and an automobile, and had an annual income of four thousand dollars from farming operations. She alleged that she had no money to employ attorneys to represent her, and to pay the necessary expenses to prepare her case for trial, or to support her during the pendency of the cause. Defendant in his answer admitted the marriage and separation as alleged, and denied generally all other allegations. On February 9, 1920, plaintiff filed a motion for temporary maintenance and attorneys' fees. In this motion plaintiff alleged the same facts as to the marriage, separation, abandonment, her lack of funds and defendant's ability to provide maintenance for her as alleged in her petition, and asked for an allowance sufficient to pay attorney fees, necessary expenses to prepare her case for trial, and for support during the pendency of the cause. The court heard evidence on this motion, and rendered judgment thereon allowing $ 35 per month for temporary maintenance to be paid on or before the 12th of each month, and also rendered judgment for $ 185 for suit money to be paid on or before May 1, 1920. Defendant filed motion for new trial on the motion for temporary maintenance and suit money. This motion was overruled and defendant appealed.
Appellant in effect makes two assignments of error. First, that the court erred in admitting certain evidence; and second that his demurrer to the evidence should have been sustained. Plaintiff while testifying in support of her motion was asked if she knew approximately the amount of her husband's income. She started in to tell what he told her, and defendant objected on the the ground that what he told her in that respect, unless a third person was present, was a confidential communication, and incompetent. The court overruled the objection and defendant saved his exception. Then plaintiff answered that defendant told her that his income was between four and five thousand dollars per year. There is no showing that a third person was present when defendant told plaintiff what his income was, and such evidence was clearly incompetent. Berlin v. Berlin, 52 Mo. 151, was a suit for support and maintenance based upon the same statute as the instant case. In that case the wife was permitted to testify to certain conversation between herself and husband, the defendant. The court ruled that such evidence was incompetent. There the court used this language Gruner v. Gruner, 183 Mo.App. 157, 165 S.W. 865, was in divorce, and there it was held that such communications between husband and wife were incompetent. Gisel v. Gisel, 219 S.W. (Mo. App.) 664, was in divorce. In that case counsel representing plaintiff, the wife, offered to prove by her an alleged conversation between her and her husband, no third party being present. It appears that in the conversation referred to the husband accused the wife of infidelity, of having...
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