Wallace v. Wallace

• Decision Date: 24 April 1917
• Docket Number: No. 2004.,2004.
• Citation: 194 S.W. 523
• Parties: WALLACE v. WALLACE.
• Court: Missouri Court of Appeals

194 S.W. 523

WALLACE v. WALLACE.

No. 2004.

Springfield Court of Appeals. Missouri.

April 24, 1917.

Appeal from Circuit Court, New Madrid County; Sterling H. McCarty, Judge.

Divorce action by Dona Wallace against Scott Wallace. Decree for plaintiff, and defendant appeals. Affirmed.

Robert S. Rutledge, of New Madrid, for appellant.

FARRINGTON, J.

This is an appeal by the defendant in a divorce proceeding in which the wife secured a decree of divorce, and judgment for $750 as alimony in gross and for $75 as an attorney's fee.

The parties were married in November, 1910. Each had three children by former marriage. Defendant is a timber estimator in the employ of the Singer Sewing Machine Company earning $10 a day. From the evidence he appears to be a good and thrifty man at that business.

On February 7, 1916, plaintiff left her husband and brought this suit for divorce setting up three grounds, habitual drunkenness for the space of more than one year, cruel and barbarous treatment endangering plaintiff's life, and indignities rendering her condition intolerable.

Defendant's pleading, after specifically denying these charges, contained a cross-bill alleging many things as to which little support is found in the evidence except in the uncorroborated testimony of the defendant; indeed, it may be said, adhering to the rules that a spouse suing for a divorce must establish his or her allegations by a preponderance of the testimony (Gruner v. Gruner, 183 Mo. App. 157, 165 S. W. 865), and that a divorce should rarely be granted without some corroborative evidence (Maget v. Maget, 85 Mo. App. 6), that the circuit court properly denied the prayer of the cross-bill for a divorce from plaintiff.

Nor do we think the evidence adduced is even sufficient to call for the application of the rule that, where neither party is wholly innocent, both being guilty of improper conduct toward the other, a divorce will not be granted either one,, as held in Wallner v. Wallner, 167 Mo. App. 677, 150 S. W. 1082; Barth v. Barth, 168 Mo. App. 423, 151 S. W. 769; Collett v. Collett, 170 Mo. App. 590, 157 S. W. 90, and numerous other cases.

Plaintiff's charge of cruel and barbarous treatment of her by defendant is wholly unproved. Her own testimony is silent as to this, and neighbors residing a few feet from the Wallace home gave testimony that destroys this charge.

In approaching a consideration of the charge of habitual drunkenness for the space of one year it is well enough to first glance at the authorities in order to ascertain what standard the evidence must measure up to in order to authorize a divorce on this ground. In the case of Lester v. Sampson, 180 S. W. 419, a decision by this court, Sturgis, J., cites several divorce cases from Missouri and elsewhere stating what is the legal significance of the term "habitual drunkenness." In Golding v. Golding, 6 Mo. App. 602, the court held:

"Where the ground upon which a divorce is prayed is habitual drunkenness, the question is as to the existence of drunkenness as a habit; and frequent and regular recurrence of excessive indulgence in intoxicating drinks constitutes the habit."

In Glenn v. Glenn, 87 Mo. App. loc. cit. 382, the court said:

"It is not every one who may be under the influence of intoxicating liquors that is to be classed as a drunkard. A drunkard is one who habitually drinks strong drinks immoderately; one whose habit is to get drunk."

In Jackson County ex rel. Farley v. Schmid, 141 Mo. App. loc. cit. 235, 124 S. W. 1074, 1075, the court quoted with approval the following language from Page v. Page, 43 Wash. 293, 86 Pac. 582, 6 L. R. A. (N. S.) 914, 117 Am. St. Rep. 1054:

"To be a habitual drunkard a person does not have to be drunk all the time, nor necessarily incapacitated from pursuing during the working hours of the day ordinary unskilled manual labor. One is a habitual drunkard, in the meaning of the divorce laws, who has a fixed habit of frequently getting drunk. It is not necessary that he be constantly or universally drunk, nor that he have more drunken than sober hours. It is enough that he have the habit so firmly fixed upon him that he becomes drunk with recurring frequence periodically, or that he is unable to resist when the opportunity and tempation is presented."

In Tarrant v. Tarrant, 156 Mo. App. loc. cit. 730, 137 S. W. 56, another case noticed by Judge Sturgis in Lester v. Sampson, supra, it is declared that:

"A man may be an habitual drunkard and yet be sober for days and weeks together."

And in Brown v. Brown, 38 Ark. 324, the court said:

"We may, however, say in general terms that one is addicted to habitual drunkenness who has a fixed habit of frequently getting drunk, and he may be so addicted though he may not oftener be drunk than sober, and may be sober for weeks."

We think the preponderance of the evidence in this case shows that defendant was addicted for a period of more than one year before the separation to habitual drunkenness as defined in the authorities above referred to.

Plaintiff testified:

"When he was drunk, he would be drunk from 3 to 15 days. He got that way pretty often. He was drunk 21 days, from December to up in February—21 days and nights. He drank from the time we were married. He got drunk the first time in March after we were married, and has drank ever since. Never has quit. Be drunk for 15 days, get sick, and have a doctor. He kept drunk until he got sick and had to have a doctor. In March was the first time he drank after we were married, and then his spells were pretty often; sometimes 3 weeks and sometimes a month. Whenever he got whisky he got drunk, and when he took to drinking you could say Scott Wallace was a drunk man. * * * When drinking he used the house as a toilet, the house and bed. After these spells I had to clean up the house. He never had washing done but once in three years. I did it all. I had to clean up after him. * * * I took care of him during his drunken spells. * * * I said he was drunk from the 1st of December to the 7th day of February, day and night. Drank three pints of whisky day and night that I know of besides what he got over town. When he came from Louisiana he claimed he was drunk all the time down there. He came home in December. * * * Never went...