Welday v. Welday

• Decision Date: 13 July 1921
• Docket Number: No. 17354.,17354.
• Citation: 232 S.W. 1042
• Parties: WELDAY v. WELDAY.
• Court: Missouri Court of Appeals

232 S.W. 1042

WELDAY v. WELDAY.

No. 17354.

St. Louis Court of Appeals. Missouri.

July 13, 1921.

Appeal from Circuit Court, Franklin Comity; R. A. Breuer, Judge.

"Not to be officially published."

Action for divorce by Julia C. Welday against Louis D. Welday, in which defendant filed a cross-bill. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions to dismiss petition and cross-bill.

See, also, 232 S. W. 1045.

James Booth, of Pacific, Jesse M. Owen, of Union, and Jesse H. Schaper, of Washington, Mo., for appellant.

W. L. Cole and D. W. Breid, both of Union, for respondent.

NIPPER, C.

This is an action for divorce, brought by the wife against the husband, in which the husband filed a cross-bill. Both plaintiff and defendant seek a divorce on the ground of indignities. The trial court granted a divorce to plaintiff, and allowed her $3,000 alimony in gross.

Plaintiff, at the time of this trial, was 43 years of age, and was seeking a divorce from her seventh husband. Three of the seven are still living. One of the seven is denominated in this record as a "common-law" husband.

It appears that defendant advertised for a housekeeper and plaintiff answered the advertisement. She began her duties as housekeeper on the 16th of April, 1918, and was married to defendant on the 30th of May following. She acted as housekeeper for defendant for about six weeks prior to their marriage, for which she says she received no wages, nor was there any agreement that she should receive any. She said defendant would not talk wages, or anything about the contract as housekeeper, but talked marriage. Plaintiff complains that defendant failed to properly provide for her in furnishing her and the children the proper necessaries of life. When she came to live with defendant, she brought with her three children, a daughter about 14 years old, and two sons who were younger than the daughter. At first she says she tried to be kind to him, but ceased acting in that manner when he refused to get her the things she wanted to eat and wear. During the time they lived together she says they had trouble so many times that she would not undertake to remember them all. She states also that he threatened to kill her on various occasions. On the 14th of December, 1918, the day on which it is alleged the defendant deserted plaintiff, she says that early in the morning, after defendant had done the chores, he returned to look for a pair of mittens in a bureau drawer, and, not finding them there, he asked her if she knew where they were. Upon being told by her that she did not have them or know anything about them, he replied:

"Those dirty devilish boys are wearing those mittens and you are upholding them. I have enough to do with feeding them for you, dirty hoboing set, without buying your clothes."

He then went into the next room, where one of the boys was at the time, and got the mittens. He then returned to her room and began smoking his pipe. She objected to the smoking, because defendant would first chew the tobacco,. and when he had completed chewing it to his satisfaction, he would lay it up, let it dry, and afterwards smoke it in his pipe. When she protested, defendant said the house was his and he would smoke where he pleased. She then went in search of his tobacco, with the intention of burning it. When he lighted his pipe she got down the iron poker and said:

"I will knock the damn thing out of your mouth if you don't get out of here."

She says defendant struck her and knocked her unconscious. Defendant, however, denied this. About this time the plaintiff's son Archie came to the rescue of his mother with another iron poker, which he used very freely and with telling effect on defendant. Defendant then had plaintiff arrested.

Plaintiff had prior to this time, and during the month of October, 1918, left defendant, because she says of the way he acted, and for the further reason that he had suggested immoral relations with her daughter, who was staying at their home at that time.

With reference to plaintiff's treatment of defendant, we copy from the record as follows:

"Q. When did you quit treating him decent? A. After he slapped me.

"Q. When did he slap you? A. I remember it was one Sunday last summer, 1919.

"Q. You hadn't just previous to that called him a son of a bitch? A. No, sir; I never called him a son of a bitch in my life until after he struck me, not until after that day he got me so mad I did call him.

"Q. How many times did you call him? A. never counted it.

"Q. A good many times? A. I called him that until I got through.

"Q. So it wasn't 30 minutes as you testified? A. It wasn't that long.

"Q. It wasn't 15 minutes? A. I didn't keep up steam that long.

"Q. In 1918 you went to the Angerer Hotel; you was away at that time? A. Yes, sir.

"Q. At that time you instituted the insane inquiry? A. I did.

"Q. Do you know the result of that inquiry, it was tried in the probate court, was it not? A. Yes, sir; he was proved sane."

When asked if she had called defendant any names after the occurrence in December, 1918, when defendant struck her, plaintiff said she did not think defendant was at the house very often after that. She also admits being in company with other men at dances, at different times, away from her home. She admitted also that she had a "high temper," and on one occasion drew a pistol on defendant in order to make him buy certain things she wanted for her children. Since the date of the separation plaintiff has had possession of the home and premises of defendant.

Archie, plaintiff's 13 year old son, while testifying for plaintiff, stated that on many occasions since defendant struck his mother he had heard her call him "son of a bitch" and other terms to that effect; also that his mother had locked the doors of the home against defendant.

Jesse Deaton, another witness for plaintiff, testified that while he was working for defendant he heard him say, in speaking with reference to the plaintiff and her children, that if it was not for the law he would kill them all, and that he had a notion to do so anyway.

Defendant, who lived on a farm in Franklin county, Mo., testified that plaintiff always wrote out an order for what she wanted, and he bought it. He produced a number of bills which he had paid for groceries, etc. He says that on many occasions he went to the store and bought the goods, or anything that the family needed; that they used flour most of the time because plaintiff contended that corn bread was only fit for hogs to eat, saying that about all she got there was a living, and she wanted the best and was going to have it. On one occasion when she wanted to go back to Iowa she threatened to blow up the bank if defendant did not give her the money and pay her expenses. Plaintiff, when asked about this, said she may have made such threats. Defendant denies quarreling with his wife, but says he did strike at her on one occasion; that she often cursed him and applied to him vile epithets, and threatened to smash up a box in which the kept his insurance papers and other private papers, claiming that she wanted to see some letters he had received from some other place; that, when he objected to her boys breaking up his farm machinery, she told him that he had nothing but junk, and that all it was fit for was to break up; that on one occasion when he corrected one of the boys, she cursed him and told him she would fill him full of holes; that she would frequently leave at night and refuse to tell him where she had been or who she had seen. His version of the fight in which the boy participated with the iron poker was that ha went into the room, and his wife ordered him to get out with his pipe. He asked her to wait until he got his gloves. She immediately grabbed the poker and started after him. He grabbed her, pushed her down on the bed, and the boy began...