60 Mo. App. 545 | Mo. Ct. App. | 1895
This is an • action of divorce, the ground thereof being that of desertion. The answer was a general denial, coupled with the charge of adultery. There was a trial in the court below, resulting in a decree for plaintiff, from which defendant has appealed.
The first question which is presented for our decision by the defendant’s appeal is whether the charge made in the petition, that the defendant has absented herself without a reasonable cause for the space of one year, is sustained by the evidence contained in the
The defendant, after remaining in plaintiff’s house two or three hours, returned to her hotel in Kansas City the plaintiff not accompanying her. The defendant, the next day, met the plaintiff at her hotel, accord-to defendant’s testimony, and, after several hours conversation, in which plaintiff stated that things had gone so far that he could not leave Rose Goodwin, the defendant thereupon returned to Boston. The defendant testified that, en route to Boston, she wrote plaintiff several letters, reproaching him for his infidelity and bad treatment. In reply to one of these the plaintiff stated: “I have just received your letter and feel bad when I read it. It came around all right what you wanted me to let you know.” The defendant testified in explanation of the reference contained in the above quotation, that this was in answer to a request of hers to know whether Miss Goodwin was in the family way or not.
After this, plaintiff made two visits to Boston, and, during the second, the defendant sent for him and had an interview with him in the presence of Miss Taylor, when defendant asked plaintiff if he was willing for her to go to Europe, and, if so, how much of an allowance would he make her; and that plaintiff replied that defendant had his full consent to go, and that he would allow her $20 per week during her absence there and if, in case of illness, this should be insufficient, he would allow her more; besides this, he would advance her $60 on her weekly allowance, before starting. There is much other evidence, showing that the plantiff gave his unqualified consent that defendant should go abroad. About the seventeenth of October, 1888, the defendant sailed for Bremen and on the voyage was so unfortunate as to get a fall, whereby she broke one of her legs. The result was, after her arrival in Germany, she was for many months, confined in a hospital. Defendant remained abroad something over four years. From her letters to her husband and others, it appears that during this period she was in bad health and was a most unhappy and wretched woman. It appears that plaintiff continued to make the promised remittance and, on several occasions, sent defendant additional sums to defray her expenses, which were greatly increased on account of her protracted ill health. In none of the letters of the plaintiff to defendant, while she was
Finally, in August, 1892, while defendant was still abroad, the plaintiff wrote the defendant’s brother, who resided in Boston, stating that he declined to make him any further remittances for defendant, since he had supported her for years, during which time she has persistently remained away and refused to live with him as his wife. This letter was transmitted to defendant, who was then at Dresden, Germany, from which place she wrote the plaintiff bitterly reproaching him for making the false charge contained in his letter to her brother. In this letter, the defendant wrote: “Why you have taken this step toward me, I can not understand. No matter what our troubles have been, and the feelings we have had toward each other, one thjng I must say, Austin, I never'thought you so cruel hearted to leave me in a strange land penniless, or even without one line. What have I done to you to cause you to treat me like this? You assured me you would support me which is no more than right. 1 was not the one who broke the link betiveen yo%i and J.” * * *' “Remember this, as long as you were willing I remain here and sent me my allowance, I have done so; otherwise, I should have returned.” The letter makes a touching appeal to plaintiff’s honor and manhood for justice. Hearing nothing further from plaintiff, she, being provided with necessary funds by relatives, returned to Boston. Shortly after this, the plaintiff brought this suit.
It appears that Rose Goodwin has resided with plaintiff continuously since their life began together in New York, in 1887. The plaintiff’s father, mother, brothers and sisters, all testify that they had visited
There is nothing to be found in the entire record which, in the slightest degree shows that the defendant is not a woman of excellent character in every respect. She seems to be an exceedingly bright, intelligent and proud spirited woman, possessing great courage and individuality, and, besides, a refined and sensitive nature. The plaintiff, to his great credit, has shown himself to be an industrious and money making man, whose commercial standing is excellent.
We must now make answeyto the question whi<?h was suggested by us at the outset. In order to establish desertion, three things must concur": First. Cessation from cohabitation continuing one year; second, the intention in the mind of the ^deserter not to resume cohabitation, and, third, the absence of the other party’s consent to the separation, or conduct acquiescing in the same. If it be conceded that the evidence conclusively establishes the existence of the two first of these, it must be also conceded that there is a total absence of evidence establishing the third. It may be contended that the defendant’s absence was unjustified; yet, the plaintiff, by his subsequent
, It is true the evidence discloses the fact that the defendant did not cohabit with the plaintiff after some time in the summer of 1887, and thereafter lived separate from him. Still, according to the authorities just referred to, this does not warrant a dissolution of the marriage relation between the parties, for the reason that, in one of the plaintiff’s own letters to defendant, written the day following the last night that plaintiff and defendant occupied the same bed, there is the confession that plaintiff was afflicted with a vile and abominable private disease, coupled' with the advice to defendant to subject herself to certain treatment to avoid contracting his infection. Not only this, but the indubitable evidence of defendant’s knowledge that the plaintiff, during the last seven or eight years of the time defendant lived apart from him, was living in a state of concubinage with his housekeeper. It is true that the innocence of the plaintiff and his house
If all the contradictory evidence were expunged from the record and excluded from consideration, that remaining would be quite ample to justify the denial of the divorce. We feel constrained by our convictions of duty to reverse the decree, which is accordingly ordered.