Thiesen v. Thiesen

• Decision Date: 19 July 1912
• Citation: 149 S.W. 1174,167 Mo.App. 264
• Parties: MINNIE H. THIESEN, Respondent, v. PETER O. THIESEN, Appellant
• Court: Missouri Court of Appeals

149 S.W. 1174

167 Mo.App. 264

MINNIE H. THIESEN, Respondent, v. PETER O. THIESEN, Appellant

Court of Appeals of Missouri, St. Louis

July 19, 1912

Motion for Rehearing Overruled October 15, 1912.

Appeal from St. Louis County Circuit Court.--Hon. John W McElhinney, Judge.

AFFIRMED.

Judgment affirmed.

William Sacks for appellant.

(1) A petition alleging indignities in general terms is not sufficiently specific under the statute. Bauers v Bauers, 19 Mo. 351; Endsley v. Endsley, 89 Mo.App. 600; Dwyer v. Dwyer, 26 Mo.App. 659. (2) One or two unconnected acts cannot be pleaded as showing that the plaintiff is entitled to a divorce on the ground of indignities offered by the defendant to the plaintiff. Kempf v. Kempf, 34 Mo. 211; Cannon v Cannon, 17 Mo.App. 390; Mahn v. Mahn, 70 Mo.App. 337. In the case at bar the wranglings and differences were of an isolated and impulsive nature and in no way connected. (3) It is plainly evident that the wranglings and temper displayed by the defendant in this cause did not exceed that displayed by the plaintiff, and in connection with which our courts have held: "If both parties are guilty of improper conduct neither is entitled to a divorce." Morrow v. Morrow, 62 Mo.App. 299; Nagel v. Nagel, 15 Mo. 53; Hoffman v. Hoffman, 42 Mo. 547; McKeehn v. McKeehn, 84 Mo. 403; Wells v. Wells, 108 Mo.App. 88. (4) In conclusion, the judgment is against the preponderance of the evidence. Schuman v. Schuman, 93 Mo.App. 99; Jennings v. Jennings, 85 Mo.App. 290; Strahon v. Strahon, 82 Mo.App. 580.

Sam D. Hodgdon for respondent.

(1) Plaintiff's petition states a cause of action. Meyer v. Meyer, 158 Mo.App. 299, 303; Schweickert v. Schweickert, 108 Mo.App. 477. (2) Petition is good after judgment when no objection is made by defendant. Dwyer v. Dwyer, 26 Mo.App. 649. (3) Non-support is an intolerable indignity on the part of the husband toward the wife, where the husband has ample means and the wife is compelled to take in boarders to support herself and children. Weller v. Weller, 154 Mo.App. 610. (4) A finding of the court in a divorce action on conflicting evidence of witnesses heard in open court will not be disturbed on appeal. Meyer v. Meyer, 158 Mo.App. 299; Stevenson v. Stevenson, 29 Mo.App. 95; Griesedieck v. Griesedieck, 56 Mo.App. 94; Schweickert v. Schweickert, 108 Mo.App. 477.

NORTONI, J. Reynolds, P. J., and Caulfield, J., concur.

OPINION

NORTONI, J.

--This is a suit for divorce. The finding and decree were for plaintiff and defendant prosecutes the appeal.

The petition alleges that defendant offered plaintiff such indignities as to render her condition intolerable, etc., and proceeds to specify a number of the indignities proved at the trial. It is urged that the petition is insufficient to support the judgment, but, obviously, the argument is without merit, for, though it contains some general averments, a number of the specific indignities relied upon are amply set forth.

Both plaintiff and defendant are middle-aged persons and each had been married before. They were married about a year before the separation which culminated in the present divorce proceeding. The evidence of plaintiff and her several witnesses tends to prove that, after the first three months of their married life, defendant became quarrelsome and abusive toward her. Several witnesses say that plaintiff at all times treated her husband, the defendant, with kindness and affection and conducted herself as a good wife should.

Defendant is engaged in the real estate business, and it appears that plaintiff, besides assisting in the office, kept boarders as well, to aid him in making a living. Notwithstanding this, defendant objected to one of the boarders and accused plaintiff of being too fond of his company, and, according to the evidence, in this defendant certainly erred.

It appears that defendant on several occasions became angered at plaintiff without sufficient provocation and called her such names as a "she-devil," "h--l cat," etc. Though defendant never actually struck plaintiff, it is said that upon two or three occasions, while in anger, he grabbed her arm and applied vile epithets toward her in a threatening manner. On several occasions, defendant called his wife a liar and a "d--d liar" and during one of these tantrums she pulled his moustache. On one occasion plaintiff visited Springfield, Missouri, to look after some property she owned there, and defendant said to her and told...