Rudd v. Rudd

• Decision Date: 07 March 1922
• Docket Number: No. 16890.,16890.
• Citation: 238 S.W. 537
• Parties: RUDD v. RUDD.
• Court: Missouri Court of Appeals

238 S.W. 537

RUDD v. RUDD.

No. 16890.

St. Louis Court of Appeals. Missouri.

March 7, 1922.

Rehearing Denied March 23, 1922.

Appeal from Circuit Court, Scotland County; Elias M. Schofield, Special Judge.

"Not to be officially published."

Suit by Mary E. Rudd against Charles Rudd. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions.

John A. Whiteside, of Kahoka, James Dorian, of Edina, and McKee & Raines, of Memphis, for appellant.

C. C. Fogle, J. E. Luther, and M. Jayne, all of Memphis, for respondent.

ALLEN, P. J.

This is a suit for divorce, commenced in the circuit court of Scotland county on October 18, 1918. The parties were married on February 7, 1891, and the final separation occurred on or about October 15, 1918. In her petition plaintiff charges that the defendant offered to her such indignities as to render her condition intolerable, in this:

"That defendant has an ungovernable temper, and is of a fretful and quarrelsome disposition, and on various and sundry occasions during their married life he has called her foul and indecent names, * * * and he continually found fault with her and with what she did, without just cause or excuse; that plaintiff has relatives whom defendant was continually condemning and cursing and calling foul names and finding fault with to plaintiff; that defendant would strike and beat plaintiff and choke her and knock her down at various times during their married life; that on sundry occasions he, would leave their home and be gone for several days, and leave his family without any information as to where he was, and would leave them without provisions, to rely on their own resources therefor; that he would insist that plaintiff was insane and encourage their children in this belief; that he has turned the affections of their children against her; all of which has rendered her condition intolerable; and, finally, on the said 15th day of October, 1918, the defendant without just cause or excuse abandoned the bed and board of the plaintiff, and has moved into one room of her house and home, and has ever since refused to speak to plaintiff, or to have anything further to do with her whatsoever."

The answer specifically denies the averments of the petition as to the alleged indignities. Further answering, defendant alleges that in 1904 plaintiff abandoned defendant, left her home and children, and instituted an action against defendant for divorce; that she subsequently dismissed said suit, and voluntarily returned to defendant, and thereafter continued to live with him as his wife until the ____ day of ____, 1918, when she again abandoned him and her home and family without good cause. And it is averred that by dismissing said suit and returning to defendant and living with him plaintiff condoned any grounds for divorce, "real or imaginary," then existing. And, further answering, the defendant avers that plaintiff abandoned him "without real, but possibly imaginary, cause, for causes imagined to exist, which imagination he Is anxious may be dispelled' and she return to him, her home, and family, and again assume the place of wife and mother therein. That this may be accomplished defendant prays plaintiff be denied a divorce," and that he have judgment accordingly.

The reply admits that plaintiff left her home on August 1, 1904, and instituted a suit for divorce against defendant, because of alleged indignities offered to her by defendant; that such indignities are among those set forth in her petition herein; that plaintiff thereafter dismissed said suit, returned to her home, and forgave defendant the said indignities on condition that defendant should thereafter treat her with kindness and affection, and that such indignities should not be repeated thereafter. And plaintiff "admits that she thereby condoned said indignities that had theretofore been offered her by the defendant," but alleges:

"That the defendant did not repent and reform and treat her with kindness and affection, but from the time of such condonation continued and persisted in repeating said indignities and offering her such other indignities as rendered her life intolerable, as stated in the petition," and that "the indignities offered to plaintiff prior to such condonation are therefore revived as grounds for divorce."

The record discloses that on October 23, 1918, plaintiff filed a verified motion for the appointment of a receiver "to take charge of the personal property sought to be recovered from the defendant by her action." This motion sets up that after the marriage plaintiff became the owner of a life estate in certain described land upon which plaintiff and defendant thereafter resided; that from the annual products of said land, and the proceeds of the sale thereof, and the increase of the property purchased therewith, plaintiff has acquired and is the owner and entitled to the possession of the personal property described in the motion, consisting of stock, farming implements, vehicles, grain, household goods and supplies, etc., located upon said land. It is alleged that, plaintiff having removed from her residence upon said land, said personal property is in the possession of defendant, who wrongfully detains it from plaintiff and is threatening to remove, secrete, and dispose of the same; that plaintiff "is unable to give the requisite bond required in any legal action to recover the actual possession of said property immediately" ; and that defendant is wholly insolvent. The prayer of the motion is that a receiver be appointed to take charge of said personal property, to preserve the same pending the divorce suit, and that upon a final hearing of said suit the court adjudge the right of possession and the ownership thereof to be in plaintiff, and direct that the same be delivered to her, and for general relief.

To this motion defendant filed a verified pleading in the nature of an answer, denying seriatim all the material allegations thereof.

Subsequently, on October 30, 1918, Honorable N. M. Pettingill, judge of the circuit court of Scotland county, disqualified himself in the cause, and the members of the bar, in open court, elected Hon. Elias Schofield as special judge to try the cause. Thereafter, on January 15, 1919, the motion for the appointment of a receiver came on for hearing, and said special judge, on the motion and answer thereto, without the hearing of any evidence thereon, sustained the motion, and appointed the defendant receiver of said property, requiring him to execute a bond for the sum of $3,000, which was done.

Thereafter, upon a trial of the issues in the divorce case, the court entered a decree granting plaintiff a divorce; the decree reciting, however, that "the court doth not make any finding upon the separate property rights of the plaintiff."

The evidence shows that at the time of the trial below plaintiff was 47 years of age, and defendant 49. At the time of the institution of this suit they had been married more than 27 years. Three children were born of the marriage, all girls. The youngest daughter was married at the time of the trial below. The other two daughters, Bessie and Bertha, were unmarried, and lived with plaintiff and defendant in their home; the former being 27 and the latter 25 years of age. The evidence discloses that in 1904 plaintiff's father died, leaving her a life estate in a tract of 100 acres of land, with remainder to her children; and thereafter plaintiff and defendant resided in a dwelling upon this land. And it appears that defendant acquired a nearby tract of 20 acres.

To sustain the averments of her petition plaintiff began by testifying that when her oldest daughter was but nine days old defendant left home and was gone two or three weeks; that he returned, and later left and remained away two months; and that during this time she did not have provisions on hand, and had no help. As to this—a matter occurring 27 years prior to the trial—defendant's testimony is that when the oldest child was two or three weeks old he was in need of work, and went to work for a railroad company for which he had previously worked; that he came home at frequent intervals, supplied his family with provisions, and sent his wages to plaintiff. That defendant worked for the railroad company, and that this was the reason for his absence from home during much of the period mentioned, is vouched for by a witness for defendant, a near neighbor, who also testified that plaintiff had relatives with her, and that she appeared to be fully provided for. And plaintiff, in her rebuttal testimony, did not refute this.

In this connection it may be said that over defendant's objections plaintiff was permitted repeatedly to testify to conversations with the defendant, and language used by him, when no third person was present, and which ought to have been excluded as confidential communications. Gruner v. Gruner, 183 Mo. App. 157, loc. cit. 171, and cases cited, 165 S. W. 865. Indeed, much of plaintiff's testimony—a great deal of it relating to immaterial and trivial matters—consisted of testimony of this character.

As shown by the pleadings, plaintiff filed a former suit for divorce in 1904, which she voluntarily dismissed in December of that year, returning to defendant; a reconciliation having taken place.

Plaintiff testified that upon one occasion— which other testimony fixes as occurring in 1904, prior to the former suit for divorce— defendant was getting out his horses to haul some corn, when plaintiff went to the barn to stop him. She says:

"He came toward me like he was going to knock me down, and he knocked me against the barn and began to choke me."

Zelda Huckey, wife of plaintiff's brother, Jake Huckey, testified that she saw defendant choking plaintiff, but her testimony is far from convincing, in view of the other testimony touching the matter, and the fact that the record shows that following the...