Rose v. Rose

• Citation: 129 Mo. App. 175,107 S.W. 1089
• Parties: ROSE v. ROSE.
• Decision Date: 18 February 1908
• Court: Court of Appeal of Missouri (US)

107 S.W. 1089

129 Mo. App. 175

ROSE v. ROSE.

St. Louis Court of Appeals. Missouri.

February 18, 1908.

1. DIVORCE — GROUNDS — INDIGNITIES.

Unfounded charges of infidelity, especially when often repeated, vile and abusive language frequently indulged in, unmerited, uncivil, and insulting language amounting to a species of cruelty, constitute grounds for a divorce.

2. SAME — EVIDENCE — SUFFICIENCY.

In a suit for divorce on the ground of indignities consisting of false charges of infidelity, unfounded jealousy, ill-temper, quarreling, threatening to fight and fighting, and the use of opprobrious epithets, evidence held to support a judgment of divorce.

3. SAME — PETITION — SUFFICIENCY — AMENDMENT.

A petition for divorce on the ground of indignities consisting of false charges of infidelity, unfounded jealousy, ill-temper, quarreling, threatening to fight and fighting, the use of opprobrious epithets to plaintiff and about plaintiff's mother, though sufficient to support a judgment for divorce, should be amended so as to charge with more particularity the indignities shown by the evidence.

4. SAME — CONFORMITY TO PROOF.

Plaintiff, in an action for divorce, in which defendant was personally served with process, is entitled to amend his petition to conform to the proof.

Appeal from Circuit Court, Wayne County; Jos. J. Williams, Judge.

Action by Robert P. Rose against Emma L. Rose. From a judgment of dismissal, plaintiff appeals. Reversed and remanded, with directions.

O. L. Munger, for appellant.

BLAND, P. J.

The action is for divorce. The grounds alleged are indignities, such as to make life intolerable, indefinitely stated as consisting in false charges of infidelity, unfounded jealousy, ill-temper, quarreling, threatening to fight and fighting, use of opprobrious epithets to plaintiff and about plaintiff's mother, want of affection, etc. Defendant was personally served with process, but made default. The evidence shows that the parties were married on March 10, 1902, and lived together at De Soto, Mo., until June 12, 1905. boarding or keeping house, according to defendant's whim. Plaintiff is a railroad brakeman, and during the period of cohabitation with defendant was employed by the Iron Mountain Railroad Company and earned about $75 per month. His mother lives in the state of Ohio, and he in part contributes to her support. Plaintiff's evidence is that after he and defendant had been married about three months she began to falsely accuse him of infidelity, became jealous, was dissatisfied and quarrelsome, and most always met him at the door when he came in from his runs on the railroad in an ill-temper, would abuse him, and make false accusations against him in regard to his relations with other women; that he tried to pacify her and convince her that she was wrong, but could not do so. Plaintiff testified that they would board when she wanted to board and keep house when she wanted to keep house, but that she was never satisfied with either, and made frequent demands for a change from one to another, and to please her he would make the change; that on several occasions she threatened to kill him, struck, and kicked him; that she objected to him sending money to his mother, and told him she could use all the money he made, and that she married him for nothing more than to get a living out of him. The following appears in plaintiff's testimony: "Q. I will ask you to state to the court what language she used toward your mother when this matter was made known to her that you had contributed to your mother's support. A. She talked in plain words. She called her a `damned old bitch,' and such names as that. Q. She had never seen your mother? A. Never saw her in her life. Q. What did you do then? A. I told her if she had nothing more to say for her than that that it would be the last chance she would get to curse her to me. I had taken about two years of such talk, and I couldn't stand it any more." Plaintiff testified that he then left defendant, and understood she had gone to St. Louis, and was at work in some department store. The evidence shows plaintiff to be a peaceable, well-behaved, sober, industrious, honest man, and that he treated his wife well, paid all her bills, and provided for and clothed her as well as his means would admit of.

Mr. C. P. Hughes testified as follows: "Q. What was her conduct toward him? A. I remember of one occasion when they were at a social gathering at my house, and we were playing `flinch,' and she and her partner lost all the games, and I think Mr. Rose won some of them, and she got angry at him and abused him, but I don't recollect the exact words she used then. She abused him shamefully, and treated him very mean, and we all felt ashamed of her. Q. Would you say that her conduct was such that it would render his life miserable and make him ashamed of her before his neighbors and friends? A. Yes, sir; he never scolded her or anything of that kind. Q. About when was that? A. I suppose that was a year after they were married. Q. Did she use...