Pickett v. Pickett

• Decision Date: 06 May 1941
• Docket Number: No. 25726.,25726.
• Citation: 150 S.W.2d 587
• Parties: PICKETT v. PICKETT.
• Court: Missouri Court of Appeals

150 S.W.2d 587

PICKETT v. PICKETT.

No. 25726.

St. Louis Court of Appeals. Missouri.

May 6, 1941.

Rehearing Denied May 20, 1941.

Appeal from St. Louis Circuit Court; Michael J. Scott, Judge.

"Not to be reported in State Reports."

Suit for divorce by Henry Pickett against Loretta Pickett. From a decree for the plaintiff, defendant appeals.

Affirmed.

Joseph C. Hopewell, of St. Louis, for appellant.

Aubrey B. Hamilton and James H. Connor, both of St. Louis, for respondent.

HUGHES, Presiding Judge.

This is an appeal by defendant from a judgment decreeing a divorce for plaintiff upon his petition based on general indignities. The answer admits the marriage and separation and denies all other allegations of the petition.

The specific charges in the petition are: (1) That defendant was of a nagging disposition, finding fault with and criticizing plaintiff; (2) that defendant was possessed of a violent temper; (3) that defendant harassed and annoyed plaintiff at his place of employment; (4) that defendant had been cold and indifferent toward plaintiff and on numerous occasions stated that she no longer loved him and that she did not intend to live with him any longer, and (5) that on three occasions she had withdrawn money from a joint bank account and deserted and abandoned plaintiff. The testimony took in a much wider range than the specific charges in the pleadings; however, there was not an objection made or exception saved throughout the trial until the overruling of defendant's motion for a new trial. Therefore, although a large part of the testimony related to matters not pleaded, such testimony was received without objection, and should be considered on appeal as though pleaded. England v. England, 225 Mo.App. 725, 39 S.W.2d 429.

Plaintiff and defendant were married on June 12, 1934. Plaintiff was 58 years of age at the time of the marriage and defendant was 57 years of age. Each had been married previously and defendant had seven children by her former marriage; plaintiff had no children.

Plaintiff's testimony shows that he had a regular job and worked regularly; there is no complaint that he was not a good provider. He kept his savings in a joint bank account with his wife. Except for occasional differences they got along fairly well for about two years, when, in October, 1937, following a quarrel defendant left the home, taking with her plaintiff's pay check of between $40 and $45, and withdrawing $100 from the bank. Shortly afterwards she returned to the home; plaintiff says, "I agreed if she would return the $100 and behave herself she could come back." On December 27, 1937, while plaintiff was at work, defendant again left the home, taking her things with her and taking $100 from the bank account. On this occasion she remained away until the following May, after which time they lived together until the final separation on August 20, 1939. Plaintiff testified that he was a crossing watchman employed by the Wabash Railway and that his wife would come to his place of work and quarrel and fuss with him, so that everybody around the neighborhood could hear it; this occurred four or five times a week; that he told her it was against the Company's rules, but she ignored him. That when they were alone, "she sat at the window and if I said anything she would turn around and look at you ready to bite your head off." He said she hardly ever answered him; was cool towards him, and didn't seem like she cared where he was. That she put in two or three days a week with an organization to which she belonged instead of taking care of the home. That the house was poorly taken care of; it wasn't kept clean; sometimes she prepared his meals and sometimes she did not and some evenings when he would come in there would be nothing there. On August 20, 1939, he went to the house and got six bottles of beer from the icebox, and he and a friend took the beer away and drank it, and when he returned to the house "she was wild," and said he was drunk, and called in a policeman; that the officer came in, and turned around and walked out. That she left the home then and there without saying where she was going, and that she withdrew all of the money from his savings account that time.

Charles Dewey, plaintiff's witness, testified that he was employed in a grocery and meat market conducted by Louis Huscheck; that he knew the Picketts and saw them together occasionally; that he had seen them in a tavern several times drinking beer and had seen Mrs. Pickett taking beer home; sometimes she quarreled with him. That Mrs. Pickett told Mr. Huscheck and his wife she wouldn't have Mr. Pickett any more. "She said she wouldn't have him any more and wouldn't take him back any more. She told a lot of people besides me and Huscheck that."

Fred Kersting, plaintiff's witness, testified he was employed at a tavern; that Mrs. Pickett would come to his place to buy bottle beer.

Louis Huscheck, plaintiff's witness, testified that Mrs. Pickett told him she wasn't interested in Henry any more and that she wasn't going to live with him any more.

Defendant, Loretta Pickett, testified that plaintiff would get mad and was abusive for a little while, and then would pout for days unless he was compelled to speak to her, and then would speak to her in a rough tone of voice. That in October, 1937, he got mad and was going to knock her out of a chair; he was drinking some at that time; she left the house and he locked her out for a couple of hours. After the second separation which ended in her return in May, 1938, he was quarrelsome and mean and was drinking an awful lot; he locked her out one night and she slept with the housekeeper of the building in which they live. That after the first separation in October 1937, she sent the $100 back to him, but not to get to make up with him; on that occasion they made up on the condition he would treat her right. That during the last fourteen months of their married life he was drunk an awful lot, the last ten days he was drunk every night. He would lay in bed and quarrel; one night he got up and threw a dish pan of water on her. That she cooked his meals for him, washed and ironed his clothes, mended his socks and work clothes, went and got his tobacco and went and got beer for him. That as long as she would go he took her to taverns, but that she quit drinking beer the last two years they lived together. That they never had words at his place of employment but once; that she would go there to take his lunch to him. That on the day they separated he came home, and he was drinking, he had a bottle of whiskey, and he went to bed and then began on her about her kids and first husband; that she got nervous and went out to get a policeman; the policeman came to the house and after some questions as to his drinking, asked her if she wanted him arrested and she said, "he never does fail to be on the job no matter how late he drinks at night;" and after the officer left plaintiff came after her and she left the house, and after while she came back and the door was locked, and she went to her daughter's. That she never told...