Van Fleet v. Van Fleet

• Decision Date: 03 November 1952
• Docket Number: No. 21753,21753
• Citation: 253 S.W.2d 508
• Parties: VAN FLEET v. VAN FLEET.
• Court: Missouri Court of Appeals

Page 508

253 S.W.2d 508

VAN FLEET v. VAN FLEET.

No. 21753.

Kansas City Court of Appeals, Missouri.

Nov. 3, 1952.

Lucien Littick, Walter Raymond, Kansas City, for appellant.

Paul Van Osdol, Jr., Kansas City, for respondent.

CAVE, Justice.

This is an appeal from a judgment for a divorce and alimony in gross in the sum of $2,500. On November 1, 1949, the plaintiff (the husband and respondent) filed suit for divorce against the defendant in the circuit court of Jackson County; on November 12 defendant filed her answer and cross-complaint; on October 24, 1951, the case came on for trial. At that time defendant asked that the case be continued due to her physical condition.

In opposition to the request for a continuance, plaintiff offered the testimony of Dr. William Gist. He testified that he had examined the defendant the day before and that all her complaints related to her heart and circulation. When he first took her blood pressure she was in an emotional and upset state and he found it to be approximately 190/90; he visited with her for about ten minutes and again took her blood pressure and found it to be 145/90; that for a person her age a normal blood pressure would be anywhere from 115 to 130 over 70 or 85; he listened to her heart and did not detect any murmurs or any evidence of organic disease; that while she was upset and emotional her pulse varied from 110 to 140; that a person with high blood pressure is more likely to have a vascular accident when they become excited or emotional than one who does not have high blood pressure. Concerning whether it would be dangerous for defendant to proceed with the trial, the doctor was asked:

'Q. Could you foresee any great danger in the case of Mrs. Van Fleet in proceeding here in this divorce proceeding? I call your attention to the fact she will take the stand as plaintiff, or upon her counter-petition? A. You mean could I foresee an accident occurring?

'Q. Yes. A. I don't believe I could answer that. I don't know.

'Q. You don't foresee any more possibility than any one else having that kind of a condition? A. No.'

On cross-examination he stated: 'I having seen this woman for this first time it probably would be better did she not go into court.' He further testified that a person with high blood pressure should not keep late hours and do considerable drinking; that such conduct is 'a great deal worse' than coming into court for trial.

Plaintiff next offered Mr. Bentzinger as a witnesses. He testified that he had been managing the apartment building where defendant lived; that he was suffering from an ailment which kept him awake at night; that during the two or three weeks prior to the trial he had seen Mrs. Van Fleet go out in the evening around 7:00 and come back around 12:00, 1:00 and 2:00 o'clock; that on Saturday might, about a week before the day of the trial, he saw three men come in with her about 8:00 o'clock, and shortly all three went out but soon came back; 'they all got tight' and made a lot of noise; the next day when he cleaned the apartment he found three empty fifths of whiskey and about 20 or 24 beer cans in the trash can outside of defendant's door; that the day following this drinking and unusual noises, the defendant called and wanted him to cash a check for $50; 'her tongue was so think she could hardly get it right'; that on other occasions he had gone to defendant's apartment and told her they would have to quit making so much noise or she would have to move; that on many other occasions he had seen the defendant coming and going late at night.

Dr. Philip Byers, offered as a witness by defendant, testified that on Monday before the day of trial he had made a thorough examination of defendant's heart and chest and found no abnormal condition and there were no murmurs; the electrocardiogram and an examination of the chest and lungs did not reveal any abnormality; that her blood pressure in the left arm was 160/92 and in the right arm 148/86, and her pulse was 110; that such blood pressure did not prevent defendant from coming into court and testifying, but one blood pressure reading would not be sufficient evidence to answer that question unequivocally; that about one month before the day of trial the defendant had been hospitalized for a very minor operation, and upon examination he found her blood pressure 200/110. He declined to say whether defendant was physically able to proceed in court 'because I like to sleep at night,' but he did think there was some danger. He stated that defendant's condition is more or less permanent and that there is a chance of it getting worse as she grows older. On cross-examination he testified that the defendant was a regular patient of his and that she had formerly worked in his office, and at that time she had high blood pressure and her condition was about as he found it on his examination before trial. The exact time of her employment in the doctor's office is not quite clear, but it does appear that she worked there as late as November 1949.

Following this testimony the court called for a consultation in his chambers. That conference is not reported in the transcript, but when all parties returned to the courtroom the record shows that plaintiff dismissed his petition and the cause proceeded to trial on defendant's cross-bill without objection. She testified to sufficient facts to entitle her to a divorce. When defendant's counsel asked if the agreed settlement of alimony had been submitted to her she stated that it had, and he then explained that by the agreement the defendant was to be awarded $2,500 alimony in gross, payable $50 a month; attorney fees, and an automobile; whereupon defendant stated that she understood the alimony was to be paid in a lump sum. After some discussion the court suggested a short recess to allow a conference between defendant and her counsel. Upon returning to the stand defendant stated that she understood and would accept the settlement, and that she was satisfied with the advice of her counsel. The court again explained to her what the settlement meant and that it would not be modified later, and defendant...