Viertel v. Viertel

• Decision Date: 04 February 1907
• Citation: 123 Mo. App. 63,99 S.W. 759
• Parties: VIERTEL v. VIERTEL.
• Court: Missouri Court of Appeals

99 S.W. 759

123 Mo. App. 63

VIERTEL v. VIERTEL.

Kansas City Court of Appeals. Missouri.

February 4, 1907.

1. DIVORCE—CONDONATION.

Condonation amounts to forgiveness on condition of subsequent proper conduct on the part of the other party, and, if the condition is not kept, the rights of the injured party to a divorce are restored.

2. SAME—EVIDENCE—SUFFICIENCY.

In a suit for divorce by a wife on the ground of indignities of the husband, evidence considered, and held such as to require a decree for plaintiff.

Appeal from Circuit Court, Cooper County; Wm. H. Martin, Judge.

Suit by Grace F. Viertel against William Viertel for divorce. From a judgment in favor of defendant, plaintiff appeals. Reversed and remanded, with directions to enter a decree in favor of plaintiff, to adjudge her alimony, and decree the care and custody of the children.

W. F. Johnson and W. M. Williams, for appellant. John & J. W. Cosgrove, for respondent.

BROADDUS, P. J.

This is a suit for divorce on the ground of certain alleged indignities of the husband against the wife. They were married in 1891. At the beginning of the suit they had two children; one born to them having died previously.

The grounds relied on for a divorce are as follows: That on March 6th, 1902, defendant threatened plaintiff with personal violence, by holding his clenched fist above her head and saying, "God damn you, I'll kill you, you God damned son of a bitch"; that he applied opprobrious and obscene words to her: that he threatened to abandon her and remove to Kansas City; that, when she asked him for money to buy a wrap for herself, he became furiously angry and said everything was going to hell; that he was going to have a sale and quit; that in 1901 he threatened to burn all the books in the house to prevent plaintiff from reading them; that plaintiff purchased a surrey for the use of the family out of her savings, and defendant, to annoy and mortify her, threatened to walk behind his father's hearse to the funeral rather than ride in the surrey with her; that on the 21st of January, 1904, he said to plaintiff, "Don't you bring any God damned piano into this house; by God, I'll kick the agent into the road, and I'll take an ax and split the damned thing to pieces. I'll let you know, by God, I'll have things as I say," which was said in the presence of others to humiliate her; that defendant required plaintiff to do the milking and other rough work in all kinds of weather, to the injury of her health; that on July 1, 1905, he took up a chair and threatened to strike her with it, and cursed and said it would not take him long to wipe out the whole family; that he was furiously angry, cursed plaintiff; that on the same morning, to harass and annoy plaintiff, he cut down the flowers at the door of their home and then told her of it; and that she was in danger of personal violence at the hands of defendant, and that in justice to herself for the causes assigned she was compelled to separate from and live apart from him. The answer of defendant was a denial of plaintiff's charges, except that he admitted having cut the flowers, but he justifies the act by alleging that they belonged to the species called "Cosmos," and that the stalks had fallen across the sidewalk. He alleges that the surrey was purchased without his consent, and that the wheels were locked with a chain, and that he told his wife that this was done to prevent him from using it, and that under no circumstances would he ever ride in it. The answer alleged that plaintiff insisted upon having her mother live with them against the defendant's wishes, who treated him with disrespect, and who would not speak to him, that she had been divorced from her husband, and that she was the cause of plaintiff leaving him. Plaintiff's reply seeks to justify the retention of her mother in her home on the ground that she was afraid to remain alone with the defendant, and denies that defendant has any cause of complaint on that ground. The court after hearing the testimony dismissed plaintiff's bill, and she appealed.

The plaintiff testified: That prior to her marriage she had been a school teacher, and had at the time of her marriage about $350 she had saved from her earnings, which she turned over to defendant. That when they were married she moved to the home of defendant on a farm in Cooper county. That she left defendant on the 10th of July, 1905, and went to the home of her mother in Boonville. That on the 1st of July previous, while at the breakfast table, defendant drew a chair back and swore it would not take him long to wipe out the entire family, and that he included in his language his two little girls, who were standing by her at the time. She stated that he did not raise the chair over her, but drew it back in a threatening attitude, and said, "By God, it would not take him [me] long to wipe out the whole family." This controversy she says grew out of the fact of his cutting the flowers. That about March, 1902, defendant got angry one morning because she did not get up early enough, when plaintiff said she would get up when she got ready, whereupon defendant said that, when the working season commenced, he would have to go to the neighbors to get breakfast. That her habit was to get up before any one else in the morning, make the fires and prepare breakfast, and that his language on that account made her indignant. That defendant said, "By God, I will kill you, you damn son of a bitch," and that he repeated the language several times. That her mother was present at the time, who said, "Will, don't strike her"; and he said, "God damn her, I will kill her." That then defendant flew around the table and shook his fist in her mother's face, and said, "Grandma, you are the cause of this; you are the cause of it all." That plaintiff asked "if we had peace before she came," and defendant said, "We had"; whereupon plaintiff said, "It is a lie, we have never had peace." That then defendant went back to his chair and said that her chickens were the cause of the trouble. That he had told her how it would be when she commenced raising chickens. That after they had left the table she said to him, "There is one thing of which you must be sure—don't you ever lay violent hands on me. I warn you in time; that's one thing I won't take." That he then said, "I will do it some day, and when it is done I can't help it"; and that she then said, "You can help it now you have warning," and he still said, "I will do it." She testified that on the 1st of July of that year he called her a "God damned fool and chicken crank"; that when she asked him for money he said everything was going to hell, that she could have $4, and that he was going to have a sale and sell off everything; that she had asked him for $20 to buy a dress and jacket; that he threatened to burn her books to keep her from reading; that she asked him to get a surrey several times, when finally he refused to get it; that she bought the surrey without his knowledge; that, when his father's funeral was to take place, he said he would walk in the mud behind his father's hearse before he would ride with plaintiff in the surrey; that she locked the wheels of the surrey without any thought of keeping defendant from riding in it; that she locked the wheels to keep the boys on the place from using it, and not for the purpose of preventing defendant from using it; that she paid for the vehicle with her own money that she realized from raising chickens and pigs on the farm; that while Miss Fanny Hays was visiting her, and while they were at breakfast, there was a card of a piano agent on the table that plaintiff had placed there, when defendant said, "Do you see that card?" that she said, "Yes," whereupon defendant said, "That fellow was over to see me the other day about a piano," and that without anything further said by her he went on to say, substantially, that he told the agent he was not going to buy one; that he need not come around to him about a piano and stated his views on the subject; that plaintiff then said, "It served the man right if you said those things to him, for I told him if there was a piano purchased here I would have to buy one," whereupon defendant became furious and arose from his chair and beat the table with his fist, and said, "By God, don't you bring any God damned piano in this house; if you do, I will take an ax and split it to pieces, split the damned thing to pieces, and I will kick the agent into the street. I will let you know, by God, I will have things as I say." She testified that on another occasion when one of her children was sick herself and mother were sitting up with it at night, the mother was reading aloud, which had the effect of disturbing the defendant, who had gone to bed in another room; that he became very angry and used loud and abusive language toward plaintiff, and threatened to burn all the books on the place. Miss Fanny Hays corroborates plaintiff as to what occurred at night when plaintiff and her mother were watching the sick child, and as to what occurred in the controversy about the piano at the breakfast table.

A. D. Edwards also corroborates plaintiff as to what occurred on the occasion referred to when plaintiff and her mother were sitting up with the sick child, to the extent that he was sleeping in the house and was awakened by the loud voice of a man. This witness admitted that he told defendant since this suit was commenced that he did not know anything about the case, and he is otherwise contradicted.

Hugh Fiscus, plaintiff's brother, testified that defendant told him that plaintiff had so aggravated him about the flowers that he said to her, "Grace, you keep on making me so mad I am a son of a bitch if I don't...