Wesselhoeft v. Wesselhoeft

• Citation: 369 Ill. 419,17 N.E.2d 56
• Decision Date: 13 October 1938
• Docket Number: No. 24579.,24579.
• Parties: WESSELHOEFT v. WESSELHOEFT.
• Court: Supreme Court of Illinois

369 Ill. 419

17 N.E.2d 56

WESSELHOEFT

v.WESSELHOEFT.

No. 24579.

Supreme Court of Illinois.

Oct. 13, 1938.

Suit for divorce by Lydia E. Wesselhoeft against Henry J. Wesselhoeft. From a decree for plaintiff, defendant appeals.

Affirmed.Appeal from Superior Court, Cook County; George W. Bristow and Walter T. Stanton, Judges.

Irving Eisenman and Hugh E. Johnson, both of Chicago, for appellant.

Robert E. Cantwell, Jr., and Martin W. Grosse, both of Chicago, for appellee.

JONES, Justice.

Henry J. Wesselhoeft appeals from a decree of the superior court of Cook county awarding his wife, Lydia E. Wesselhoeft, a divorce, with an adjudication of property rights, and from an order denying a motion to vacate the decree and for a new trial.

Appellee's amended complaint charges extreme and repeated cruelty, habitual drunkenness and desertion; the loan and payment for appellant's benefit of between $25,000 and $30,000; prays for divorce, the return of the money advanced and for general relief. Appellant's counter-claim charged desertion by appellee. The decree dismissed the counter-claim for want of equity and granted appellee a divorce on the grounds of desertion and extreme and repeated cruelty. The parties owned, as joint tenants, a summer home at Lake Geneva and a residence on Menard avenue in the city of Chicago. The decree awards, in severalty, the Menard avenue property to appellant, and the Lake Geneva home, with the furnishings of the Menard avenue property, to appellee, and requires the execution of the necessary documents to effectuate the decree. It further orders appellant to turn over to appellee 60 shares of stock in the First National Bank of Chicago, or in lieu thereof, $18,000, in cash, and to pay appellee $1500 for the solicitor's fees. By cross-errors appellee claims the chancellor should have found appellant guilty of habitual drunkenness and should have awarded her a larger amount of money or property.

Appellant has filed a motion in this court to strike the supplemental abstract and the brief and argument of appellee on the ground that they set out some of the testimony by questions and answers instead of in the narrative form. We observe no infraction of rule 38 or rule 39, Ill.Rev.Stat.1937, c. 110, §§ 259.38, 259.39, that would justify granting the motion, and it is denied.

The parties were married in 1908 at St. Louis, Missouri. No children were born of the marriage. Appellee has a daughter, Alice, by a former marriage. They lived at the home of appellant's mother in St. Louis until her death in 1916. Appellee inherited nine unincumbered pieces of St. Louis real estate, 150 shares of stock in the Bremen Bank of that city, and about $30,000 in first mortgages on St. Louis property. Her net income was between $600 and $700 per month. At the time of the marriage appellant had some bonds at the face value of $2000 and a percel of vacant real estate in St. Louis. While the parties lived there his earnings were small. Prior to the death of appellee's mother, he worked as a bricklayer for seven or eight months at $33 per week. In 1912, appellee's mother accompanied the parties on a trip to Europe, and brought home a child, Gertrude Ashpach, who lived in the family until the parties separated on April 7, 1936. Since that time she has resided with appellee.

In 1917, appellant acquired the interest of his sister's deceased husband, William Schridde, in a manufacturing business in Chicago. Appellee loaned him $2800 of the purchase price which he subsequently repaid. The family moved to Chicago in 1918. Appellant's salary from the business was progressively increased from $25 per week until it amounted to $100 per week in 1933 or 1934. The home on Menard avenue was purchased in 1919 for $10,000. Appellant paid $4000, in cash, and assumed a mortgage of $6000 which he later paid. Appellee paid some taxes and interest on the mortgage and also paid for the furnishings. The Lake Geneva property was acquired in 1935 for $11,000, of which appellant paid helf. Appellee paid the other half, borrowing $4500 from her daughter's husband for this purpose.

Appellant admits striking appellee on July 15, 1913. He claims he struck her because of her nagging and scolding. Provocative, abusive or insulting language, or even threats without some overt act, do not justify an assault or mitigate its consequences. Cummins v. Crawford, 88 Ill. 312, 30 Am.Rep. 558;Sorgenfrei v. Schroeder, 75 Ill. 397. The evidence shows that on that occasion appellant struck appellee on the head with such violence as to leave a dent which still exists. She screamed, grew hysterical and struck at him with a bowl. Gertrude ran for a policeman but appellant was gone when they returned.

The second act complained of is alleged to have taken place on the night of October 15, 1928. Appellee testified that she and Gertrude came into the house while appellant was talking with a Mr. March about the stock market; that when he discovered them he ordered them to get out and shoved them against a chair, hurting her. The testimony of Gertrude is substantially the same, except that she said appellee was pushed into a sofa, and the witness into a chair. She testified that appellant accused them of listening in and pushed appellee down in her chest. Appellant denied the assault or any argument at the time and testified he introduced them to March and that they talked awhile. March was not called as a witness.

A third assault in charged on April 7, 1936, the date of the separation. The testimony of appellee and Gertrude is that appellant refused to eat with them, and accused them of trying to poison him; that he came up from the basement and when told that an article about which he inquired was a case for the drum of appellee's grandson, he told appellee she would be dead before the night was over; that a fight ensued between appellant and Gertrude; that appellee interceded, telling appellant to remember what he was doing and he swung back and ‘cracked her one’ on the chest. Gertrude testified that he shoved appellee and she fell back against the stove. Appellee was in delicate health, recovering from pneumonia. She had left her bed only a few weeks previously. She told appellant she could not stand it and was going to faint. He told her to go ahead and faint, and that he did not care, and opened the doors. He ordered her to leave. She left that night. Appellee's daughter and her husband arrived shortly after the assault. They testified appellee was crying and gasping for breath; that when appellant was asked why he started the trouble and was reminded of appellee's physical condition, he said he thought he had waited long enough and could start anything he wanted to with her now; that he refused to consider reconciliation or to buy any coal although they had none and the temperature inside the house was 55 degrees. Alice's husband testified he heard appellant order appellee to get out of the house. Appellant admitted an altercation and fight with Gertrude, but denied striking his wife or ordering her to leave.

The testimony of appellee's witnesses shows she was a kind and dutiful wife. She treated him with generosity, paying practically all the household bills to the amount of over $19,000, for which she makes no claim. She advanced over $7700 to appellant for his personal use, which the testimony shows he repaid except about $350. He drank intoxicants freely and made and kept a large supply on hand.

This court has had frequent occasion to consider what acts and conduct constitute extreme and repeated cruelty within the meaning of the statute. In Teal v. Teal, 324 Ill. 207...