Westermayer v. Westermayer

• Decision Date: 02 December 1924
• Citation: 267 S.W. 24,216 Mo.App. 74
• Parties: WALTER A. WESTERMAYER, an Insane Person, by FRANCIS WESTERMAYER, His Guardian, Appellant, v. FLORENCE WESTERMAYER, Respondent.
• Court: Missouri Court of Appeals

267 S.W. 24

216 Mo.App. 74

WALTER A. WESTERMAYER, an Insane Person, by FRANCIS WESTERMAYER, His Guardian, Appellant, v. FLORENCE WESTERMAYER, Respondent.

Court of Appeals of Missouri, St. Louis

December 2, 1924

Appeal from the Circuit Court of the City of St. Louis.--Hon. Geo H. Shields, Judge.

REVERSED AND REMANDED (with directions).

Judgment reversed and cause remanded.

Marion C. Early and Ivon Lodge for appellant.

(1) This is an equity case and this court will review the law and all the evidence. If it finds that the judgment of the trial court is not supported by the law and evidence or that upon the whole record the judgment is against public policy it will reverse the case and remand with directions. Gross v. Gross, 96 Mo.App. 486; Slais v. Slais, 9 Mo.App. 96; Chapline v. Stone, 77 Mo.App. 523. (2) Marriage is considered in law as a civil contract and in order to make a binding marriage contract both of the parties must be capable of contracting. Chapline v. Stone, 77 Mo.App. 523; Turner v. Myers, 1 Hagg. Con. R 416; Wagmire v. Jetmore, 22 Ohio St. 273; Rawdon v. Rawdon, 28 Ala 565; True v. Ranney, 21 N H., 83; Clark v. Clark, 10 N.H. 382. (3) A broad degree of general insanity will of itself without special inquiry into the individual transaction invalidate the marriage. 1 Bishop on Marriage and Divorce, par. 600; 18 Ruling Case Law, 405; Durham v. Durham, 10 P. D. 80. (4) The finding and judgment in this case is against not only the weight of the evidence, but is contrary to all the probative evidence in the case. (5) The trial court is not supported by the evidence of a single witness in finding Walter had a lucid interval in October, 1919, for all of defendant's witnesses testified not only that he was sane in October, but that he was just as sane while in the sanitarium. (6) There was no issue of fact as to whether or not Walter was insane at the time of the trial, for defendant's counsel admitted that in his memorandum. (7) To uphold such a pretended marriage is against public policy and a menace to society. (8) Public opinion disapproves of the court's stamping as valid a marriage of this sort as evidenced by the repeal and re-enactment of sec. 7299, R. S. 1919, page 469, Law of Missouri, 1921.

Edward W. Foristel and O. J. Mudd for respondent.

(1) The order overruling the motion to set aside the previous order overruling the motion to set aside the decree and for a new trial is not appealable. Bonfils v. Food Service Co., 253 S.W. 982. (2) As there is a "strong contradiction" in the evidence, the finding of the Chancellor, although not conclusive, is entitled to weight, and we submit should prevail. Price v. Ransche, 186 S.W. 958; Sinnett v. Sinnett, 201 S.W. 887. (3) To annul a marriage on the ground of mental incompetency the sufficient insanity must be made to appear not merely by a doubtful preponderance, but must be made to appear so as to be very clear. 9 R. C. L. 292, infra; Cole v. Cole, 5 Sneed 57, 70 Am. Dec. 275; Durham v. Durham, 10 P. D. 80. The decree dismissing plaintiff's bill is sustained by the law. 26 Cyc. 908 (infra); Id. 902 (infra); 9 R. C. L. 288 (infra); Slais v. Slais, 9 Mo.App. 96; Henderson v. Henderson, 141 Mo.App. 540; 38 L. R. A. (N. S.) 818, note.

NIPPER, C. Allen, P. J., Becker and Daues, JJ., concur.

OPINION

NIPPER, C--

This is a bill in equity brought by the plaintiff, through his father acting as his guardian, to annul a marriage between Walter A. Westermayer and defendant. Walter A. Westermayer enlisted in the army on June 4, 1918, at St. Louis, Missouri. In November, 1918, he was honorably discharged from the Army of the United States, and brought to the City Hospital in St. Louis, the reason for the discharge being that he had become insane, and was suffering from that form of insanity denominated as dementia praecox, catatonic form. He was afterwards transferred to the City Sanitarium of the city of St. Louis, such institution being one for the care of insane persons. On March 31, 1919, he was adjudged insane by the probate court, and his father, John B. Westermayer, was appointed as his guardian. After this case was argued and submitted, John B. Westermayer died, and Francis Westermayer was substituted as guardian. When he first came to the city sanitarium or insane hospital he was what was termed a "stretcher patient," being unable to walk or talk, and was practically helpless. He was kept at this institution until August, 1919, at which time he had improved both mentally and physically, to the extent that he could walk where he desired without any assistance or difficulty, and had improved mentally to the extent that his father and mother felt that they could, perhaps, take care of him in their own home, and insisted on taking him away from the sanitarium and removing him to their home, so that he could be quiet, and have the personal care and attention of a father and mother. The physicians in charge of the sanitarium objected to this action on the part of the parents, on the theory that he was not in a condition to be taken away from the sanitarium, but the wishes of the father and mother prevailed and he was taken home for the purpose of ascertaining whether or not he would improve at home as well as at the institution, and in order that his father and mother might give him their personal care and attention. He was twenty-two years of age at the time of his enlistment in the army, and just before he departed it appears that he had some idea of marrying the defendant. His parents, or his mother at least, objected, advising him that it would be a mistake for him to marry just before entering the army, because it was possible that he might become maimed, wounded, or crippled for life, and in view of this possibility it would be best if he would wait until his return from the army. There is some evidence from witnesses of defendant that the mother objected further on the ground that if her son was killed the defendant would get the insurance, and also his property amounting to some few thousand dollars, which had been given him by his father.

The testimony of Dr. George A. Johns, who was Superintendent of the City Sanitarium, and had been connected with the institution for more than fifteen years, as well as the testimony of Dr. Lewald, who had been connected with the institution for several years, and the testimony of the nurses in attendance upon the plaintiff, and also the testimony of his father and mother, shows beyond any question of doubt that he was insane at the time he entered the sanitarium, and was insane at the time he left. In fact this much of the statement of facts in this case must necessarily be conceded by any reasonable mind who reads this record.

Prior to the time he left the sanitarium in August, the defendant, as well as other friends and relatives, were permitted to visit him on different occasions, and during the latter portion of his stay, prior to his being taken home in August, he would occasionally be taken on automobile rides, and kept away from the institution for an hour or two at a time. He was kept at home by his parents, and permitted to go out during the day, for about two months. During this time he was not seen or visited by the doctors or nurses who had charge of him at the sanitarium, but the father and mother both testified that they noticed no difference in his condition during his stay at home. During the period from the time he was brought home in August, 1919, until the date of his marriage to defendant about October 7, 1919, he was extremely nervous, told his father and mother that they were crazy, would lie down on the floor, make peculiar and unusual statements to the effect that he could take his head off his body and put it back again, and would take the Bible and lay it on the table, read it all day and refuse to eat, saying: "I only eat the eats from God." He would tell his mother that he could make his arms jump from his body like a jumping-jack, and that they would fly back again; that he would write on tablets for hours at a time and say he was writing poetry. He wanted to go to the bank and borrow $ 100 to improve certain streets in the city of St. Louis, and devoted a great deal of time to talking about helping the poor, when the record discloses he had no means except what little his father had given him; and on one occasion wanted to jump out of the upstairs window.

During his stay at home, and prior to the date of the marriage, the defendant would visit him, and he would visit defendant at her home. About the 7th of October, he left home in the morning and told his parents he was going over to defendant's home, and that he and defendant were going to witness the Veiled Prophet's Parade. He was told that this could not be seen until night, but he replied that he and defendant were going down town. On that occasion he went with defendant to Alton, Illinois, and was married by a justice of the peace, and he returned to his home about 10:30 that night. On October 11th they were married at Our Lady of Sorrows Church by Father Stolte, who testified that he did not notice anything wrong with defendant at the time he performed the marriage ceremony; that he saw him on two different occasions, about fifteen minutes each time, and noticed nothing unusual on either occasion.

Joseph Dougherty, a friend of both plaintiff and defendant, was working at the Grand Leader on October 10th, the day before the church ceremony was performed, and plaintiff, Walter Westermayer, came to the place where Dougherty was working accompanied by defendant's mother, and requested him to act as groomsman at the church wedding to be performed the next evening. He consented and agreed to act, and stated that he did not...