Schweikert v. Schweikert

• Decision Date: 29 November 1904
• Parties: SCHWEIKERT v. SCHWEIKERT.
• Court: Missouri Court of Appeals

83 S.W. 1095

108 Mo. App. 477

SCHWEIKERT v. SCHWEIKERT.

St. Louis Court of Appeals. Missouri.

November 29, 1904.

DIVORCE — PLEADINGS — SUFFICIENCY — REVIEW.

1. A petition for divorce, charging indignities embodied in oral abuse reflecting on the character of plaintiff, need not affirm that the language was used in the presence of a third person.

2. The finding of the court in a divorce proceeding will not be disturbed when supported by the evidence.

Appeal from St. Louis Circuit Court; Moses N. Sale, Judge.

Action by Emily Schweikert against Christian Schweikert. From a judgment for plaintiff, defendant appeals. Affirmed.

Henry B. Davis, for appellant. Thos. B. Estep and Chas. F. Krone, for respondent.

REYBURN, J.

In this proceeding the offenses charged and assigned as causes for divorce were that the husband, a man of violent temper, would become angered against plaintiff without cause, and would frequently abuse her, applying coarse and obscene epithets, specified; that on several occasions he told her he would be glad if she would leave him; that he threatened to strike her, on one occasion saying he would give her one blow which would be enough for her; and that he compelled her, while pregnant and ill, to work in the bakery he conducted, at hard work, till a late hour of the night, causing her to become quite ill, so that she was confined to bed for four months. The answer was a general denial. At the hearing defendant's attorney interposed an ineffectual objection to any evidence being offered under the petition, as it was defective, in containing charges of indignities embodied in oral abuse of plaintiff, and use of words reflecting on the character of plaintiff, without the essential further averment that such language was uttered in the presence of third persons. The trial proceeded, and after the examination of witnesses for the opposing parties the court granted plaintiff the relief sought, with custody of the infant child, and alimony at rate of $5 per week.

The general rule is firmly established in this state that private communications between husband and wife cannot be testified to by either party. The reason of the rule of thus rendering the parties to the marital union incompetent witnesses as to language spoken by one to the other while alone has been declared to be from considerations of public policy; but it has been further held in a recent decision in this state that where, from the peculiar nature of the inquiry, the...