Ritayik v. Ritayik

• Decision Date: 01 July 1919
• Docket Number: No. 16594.,16594.
• Citation: 213 S.W. 883,202 Mo. App. 74
• Parties: RITAYIK v. RITAYIK.
• Court: Missouri Court of Appeals

213 S.W. 883

202 Mo. App. 74

RITAYIK v. RITAYIK.

No. 16594.

St. Louis Court of Appeals. Missouri.

Argued and Submitted June 19, 1919.

Opinion Filed July 1, 1919.

Appeal from St. Louis Circuit Court; Benj. J. Klene, Judge.

Action for divorce by Victor A. Ritayik, by Mary Piskulio, his next friend, against Emma Ritayik. From a decree dismissing the petition, plaintiff appeals. Reversed and remanded, with directions.

Earl M. Pirkey, of St. Louis, for appellant. James G. Berkeley, of De Soto, for respondent.

REYNOLDS, P. J.

Action for divorce by plaintiff against his wife. Plaintiff, a minor, suing by his next friend, averring that he was married to defendant on October 31st, 1918, in the city of St. Louis, avers that at the time of the solemnization of the marriage defendant was pregnant by a man other than plaintiff without his knowledge at or before the time of the solemnization of the marriage; that plaintiff first learned of the condition of the defendant on the day of his marriage and thereupon left her and had not lived with her since.

The answer is a general denial.

There was a decree on trial before the circuit court, dismissing plaintiff's bill, from which he appealed.

A careful reading of the testimony in the case satisfies us that the learned trial court committed error in refusing plaintiff a decree.

At the time of the solemnization of the marriage between plaintiff and defendant, plaintiff was about 19 years of age and his wife about the same age. They were married in St. Louis, October 31st, 1918, by a justice of the peace. About a week before the marriage defendant told plaintiff that she was pregnant and that he was responsible and that he ought to marry her. They talked it over for awhile and finally plaintiff said that if it was true that he was responsible for her condition, he would marry her. Directly after the performance of the marriage ceremony, and while they were on their way to plaintiff's home, plaintiff, for some reason, became suspicious as to whether his wife had told him the truth and took her to the office of a doctor with whom plaintiff was acquainted. Plaintiff did not tell his wife what his purpose was in going to the doctor's, and she made no objection and they went together into the doctor's office. Plaintiff said to the doctor, his wife present:

"Doctor, this is my wife, and I have known this girl for only two months and she claims, she is in a family way by me and that I had to marry her, and so I married her."

He told the doctor that they had been married that day and from some actions of his wife he became suspicious as to whether she "had not put something over on him." He further told the doctor that if his examination proved that he was in fault in the case, he would stick by defendant, but if it proved otherwise he would not, and would have the doctor's testimony against her. To this defendant said, "That is all right." Whereupon the doctor examined her. In consequence of the doctor's report to him of the condition and length of pregnancy, plaintiff made up his mind to leave defendant, and taking her on a car went with her as far as Tower Grove Avenue, got off the car, went to his own home and, as far as he knew, defendant went to the home of her employer. He saw her two or three times after that at the house of a friend, in the presence of other people, but had not lived with her as her husband from the time of the marriage down, and on November 11th, 1918, he brought this action. On cross-examination, plaintiff testified that he thought that one reason he had not noticed the condition of his wife was, that he was very nearsighted and that he had yielded to her solicitation of marriage because he had no reason to think anyone but himself had been intimate with her. Plaintiff denied that he had ever met defendant until about two months before their marriage, when he met her at a house where they were both employed. While admitting that he had had undue intercourse with defendant before their marriage, he denied that it had been under any promise of marriage.

The physician referred to, testified that when plaintiff and defendant came to his office and were in his private room, plaintiff, in the presence of defendant, said that he had been going with her a couple of months immediately prior to their marriage; that she told him she was pregnant and wanted him to marry her; that she had said that he was the father of the child; that he was "willing and man enough" to marry the girl, and that they had got married that day; that something had raised his suspicions at the justice's office and after leaving there, and to satisfy himself he had brought his wife to him (the doctor) for an examination; that he (the doctor) accordingly examined her, she making no particular objection, and he asked defendant how far she was gone, and she said, "Two months." After an examination he said to her:

"You are between six and seven months, at least. Don't you think somebody else has been familiar with you?"

To which she said, "No"; that it could not be that she was any more than two months gone in pregnancy and that plaintiff was responsible. He further testified that defendant was dressed in a girlish fashion, with a short dress made...