Polster v. Polster

• Decision Date: 30 November 1909
• Parties: POLSTER v. POLSTER.
• Court: Missouri Court of Appeals

123 S.W. 81

POLSTER v. POLSTER.

St. Louis Court of Appeals. Missouri.

November 30, 1909.

1. HUSBAND AND WIFE (§ 287)—ACTION BY WIFE FOR SUPPORT—GROUNDS.

To authorize an action against a husband under Rev. St. 1899, § 4327 (Ann. St. 1906, p. 2375), for support of his wife and children, there must be both an abandonment and failure to support.

2. HUSBAND AND WIFE (§ 288)—ACTION BY WIFE FOR SUPPORT — ABANDONMENT OF HOME BY WIFE.

Where the husband's conduct is such as to render the wife's condition unendurable at his home, she may leave the home without forfeiting her right to maintain an action against him under Rev. St. 1899, § 4327 (Ann. St. 1906, p. 2375), for support.

3. HUSBAND AND WIFE (§ 288)—"ABANDONMENT" OF WIFE BY HUSBAND—ACTION BY WIFE FOR SUPPORT—DEFENSES.

Where a husband fails and refuses to support his wife, she does not forfeit her right of action, under Rev. St. 1899, § 4327 (Ann. St. 1906, p. 2375), for support, on the ground of abandonment and failure to support, by continuing to live in the same house with, but apart from, him, as a refusal to support his wife amounts to an "abandonment" of her, though they continue to live in the same house.

4. HUSBAND AND WIFE (§ 297)—ACTION BY WIFE FOR SUPPORT—SUFFICIENCY OF EVIDENCE.

Evidence held to sustain a judgment for support of wife and child on the ground of abandonment and failure to support.

Appeal from St. Louis Circuit Court; Matt G. Reynolds, Judge.

Action by Katie Polster against Oscar M. Polster. Plaintiff had judgment, and defendant appeals. Affirmed.

Zachritz & Bass, for appellant. Henry H. Oberschelp, for respondent.

NORTONI, J.

This is a suit by the wife against the husband for maintenance. The court found the issue for plaintiff and gave judgment requiring the husband to pay the wife $60 per month for the support of herself and minor child. The defendant appeals and argues that the judgment should be reversed for the reason the evidence fails to disclose the husband had abandoned the wife and refused to support her at the time the suit was commenced. It is said the suit was prematurely instituted.

It appears the parties were married November 13, 1899. The husband was a prosperous business man and possessed of considerable property. For a few years the married relations were pleasant. One child, a son, Oscar, was born to the marriage. This child was about seven years of age at the time of the institution of this suit. The evidence shows that the husband drank considerably and at times would come home under the influence of intoxicating liquors. He frequently abused his wife, and struck her with his fist upon several occasions. One blow occasioned a black eye. During the period of the World's Fair, 1904, he became enamored of another woman, and went out with her frequently, and he told numerous persons who were friends of the woman with whom he kept company that he was a single man and intended to marry her. He spent more or less money in entertaining the woman referred to and gave her several presents. Defendant told one lady that he intended to marry the woman mentioned and go to Mexico to live. There is an abundance of testimony in the record tending to prove that defendant's conduct was such as to render his wife's condition in life intolerable. It seems the husband and wife continued to reside in their former home even up to the day the present suit was instituted. However, they occupied separate apartments in the house and were not living as husband and wife. The present suit for maintenance was filed on May 18th. It had been the custom of the defendant for several years to give his wife $75 per month for household expenses. On the 1st of May, prior to the institution of this suit on the 18th day of that month, the defendant gave...