56 Mo. App. 94 | Mo. Ct. App. | 1894
— The plaintiff in his petition for divorce charged that the defendant, his wife, had an ungovernable temper and an unforgiving disposition; that for several years preceding their final separation, she had been guilty of many indignities toward him which had rendered his condition intolerable, and that she.finally compelled him to leave their home. The answer con
The plaintiff’s evidence tended to prove generally a course of quarrelsome conduct on the part of the defendant, extending over a period of two or three years prior to the final separation, which, in more than one instance, resulted in a temporary suspension of all intercourse between the parties; but that through the efforts of the plaintiff the troubles had been patched up until the seventh day of November, 1892, at which time the defendant, who owned' the homestead, peremptorily ordered the plaintiff to leave her house and never to return again.' Specifically the plaintiff’s evidence tended to prove that on several occasions the defendant called him a rascal, scoundrel, swindler, monster and a ££son-of-a-bitch;” that she spit at him; that she accused him of associating with, and making presents to, lewd women; and that she accused him of having improper relations with his daughter-in-law, who is also his niece.
On the other hand, the defendant’s evidence tended to show that, for several years preceding the final separation, the plaintiff had habitually denounced her as a crazy and mean woman; that during-the time he had neglected her; that in 1888, when three of their children died, he complained of the cost of the coffins, and also expressed the wish that all of her children had died, and that none would be living of so mean a woman; that on one occasion he caught her by the throat and dragged her into the hall; that on another occasion he pushed her against a book-case; that at another time he raised a chair and threatened to strike her, and that on the eighth day of June, 1892, he threw a beer, mug and a
It is a settled rule of practice in this state that in equity and divorce cases appellate courts are not bound by the findings of fact of the lower court, but deference, nevertheless should be paid to such findings. By this is meant that, if the findings of the trial judge are supported by a preponderance of the evidence, they must be upheld. Taylor v. Cayce, 97 Mo. 242; Owen v. Owen, 48 Mo. App. 208; Rawlins v. Rawlins, 102 Mo. 563. In the case at bar the plaintiff and the defendant contradicted each other on all material averments, except the allegation in the cross bill that the plaintiff undertook to strike the defendant with a beer mug and a cigar stand, to which particular reference will hereafter be made. Both parties were in a measure corroborated by other witnesses, the plaintiff by five of his children, the family physician, and the coachman, and the defendant by two of her children and, in one or two unimportant matters, by two servant girls. Therefore, the positive evidence bearing directly on the specific charges both in the petition and cross bill preponderates in favor of the plaintiff.
But the determination, whether an act is an indignity which would entitle one of the spouses to a divorce, must largely depend upon existing and preceding conditions; for, if the act complained of is the natural or probable result of the complainant’s own misconduct, then it is no such indignity. Therefore, the general conduct of both parties must be considered.
It is suggested by the defendant’s counsel that, if it be conceded that she was guilty of the misconduct imputed to her, it was but the natural result of plaintiff ’s conduct towards her during the last few years of their married life. The plaintiff' was married to the defendant in Germany in the year 1868. At that time he was a widower with five children; the defendant
¥e have read the record, whieh is very voluminous, and have been led to a conclusion quite different from that stated by defendant’s counsel. It is true that the plaintiff has amassed quite a fortune, and the evidence tends to prove that the defendant is a woman of domestic habits and tastes, and that she has never manifested a disposition to go into society or to adopt the ways of society people. But we do not find sufficient evidence in the record to justify the conclusion, that the plaintiff by reason of these facts had become fond of display, or that he had neglected the defendant and had become disgusted with her country ways, or that he had lost interest in his domestic affairs. On the contrary we find that,' within the time complained of, the plaintiff had given to the defendant in real
There is another matter, however, which we deem proper to discuss. The plaintiff admitted that during-one of their quarrels he became so exasperated on account of the vile abuse heaped upon him by his wife, that he attempted to hit her with a beer mug and cigar-stand. He testified that the defendant on that occasion, in the presence of his young daughter and one of' his sons,, not only applied to him vulgar and abusive-epithets, but also accused him of keeping his own niece as a mistress. The plaintiff is corroborated in this-
Our-conclusion is that the judgment of the circuit >court ought to be affirmed. < It is so ordered.