26 Mo. App. 566 | Mo. Ct. App. | 1887
delivered the opinion of the court.
The petition states that the plaintiff and the defendant were married on the' third day of March, 1874, and continued to live together as husband and wife until the first day of June, 1877, or thereabouts. It charges that, during this period, the defendant (1) for the space of one year, and further, was addicted to habitual drunkenness ; (2) that he, “ for the space of one year, and after said marriage, and further, offered such indignities to the plaintiff, during the said marriage, as to render her condition intolerable, in this: by assaulting and beating her, and threatening to kill her, and failing to provide for her support.”
The answer admits the marriage, and denies each and every other allegation of the petition. It sets up that, since July, 1880, the defendant has been, and still is, paralyzed, physically helpless, and wholly without power of locomotion; that, until the twentieth of July, 1883, the plaintiff lived with him as his wife ; that, on the last named day, while he was in bed and wholly helpless, she, without cause or provocation, deserted and forsook him, since which time she has not returned to Mm, but has remained away from him, though he has
The circuit court decreed a divorce, and awarded the custody of the only child of the marriage, a girl about six years old, to the plaintiff, in accordance with the prayer of her petition.
It is perceived that the petition for divorce is grounded upon two of the heads of the statute (Rev. Stat., sect. 2174): (1) Habitual drunkenness for the space of one year; (2) indignities rendering her condition intolerable. If the plaintiff has made out her case under either of these heads, she is entitled to a divorce, unless she has condoned the defendant ’ s offences, as set up in his answer. The record is voluminous, but has been gone over with care. We are of opinion that the plaintiff has given evidence which entitles her to a divorce on either of the above grounds, and that this evidence has not been overcome by counter evidence adduced on behalf of the defendant. We are further of opinion that the cohabitation of three years, which the defendant sets up as a condonation of his previous offences, was not such a condonation in contemplation of law. We shall proceed briefly to state our reasons for these conclusions, but we do not think it necessary to rehearse the testimony in much minuteness of detail.
The charge of indignities, rendering the condition of the plaintiff intolerable, with the specifications that the indignities consisted in his assaulting and beating the plaintiff, threatening to kill her, and failing to provide for her support, are, also, well sustained by the evidence. According to the plaintiff’s testimony, he often slapped her. On one occasion, in 1878, while she was living with her mother, he threatened to cut her heart out and throw it before her face, unless she would go with him. Tie was intoxicated at the time. Doctor Bates, the family physician, assisted in holding him off from her, and in conducting him to the sidewalk. On another occasion, in 1880, while she was living with her mother, he went to her mother’s house, intoxicated, and asked her to take a walk with him, which she refused ; whereupon he threatened to kill her. He went home, and, afterwards, started down stairs, apparently for the purpose of returning to the house of the plaintiff’s mother, when he fell down stairs and received a severe injury of the spine, which paralyzed his legs and arms. During the entire period of their married life, the aggregate
When he fell down the stairway, and received the injuries already spoken of, an eminent surgeon was called in, who, after an examination, gave it as his opinion that he could not live more than ten days. His sister communicated these facts to the plaintiff, who was, at the time,, and had been, for several months previously, living apart from him, at her mother’s house, with their child. The plaintiff conceived it to be her duty to go to the house of her step-mother and nurse her husband. This she did. Though injured to such an extent that he had neither the use of his hands nor his legs, and was, for a long period, obliged to lie on a water bed, and received his food through a tube inserted in his mouth, his vitality was such that he defeated the prediction of the surgeon, and lived. Mrs. Guthrie remained with him, and nursed him, continuously, patiently, and lovingly, for a period of about three years. During this time he exhibited, so far as a man in his physical condition might, the same infirmities of temper toward her which he had exhibited in health. He abused her, frequently, and her evidence is to the effect that, on one occasion, he threw a spit-box at her; another time, a tumbler; and habitually cursed her; though these attempted acts of violence are denied by him. In his testimony, which is ably put together and rehearsed, and which shows that he is possessed of an intellect worthy of a better lot, he admits, to some extent, these exhibitions of infirm temper, but ascribes them to the constant use of morphine, which his condition rendered necessary, and to the deprivation of the alcoholic stimulants to which he had been previously accustomed. These circumstances may have contributed, and, no doubt, did contribute, to produce this result; but the'
The evidence is conflicting as to the circumstances under which Mrs. Guthrie finally abandoned him, while thus sick at his mother’s house, and returned to the residence of her own mother. During this period of about three years their child had lived with her mother. She did not get on very well, it seems, with Mr. Guthrie’s mother. He began to mend ; and we. incline to think that, when she saw that he was about to recover ; that her position of the nurse of a helpless paralytic would soon become that of the wife of a dangerous man of ungoverned appetite and temper, with whom she had not been able to live while he was in health, the determination to return to her mother slowly grew upon her, until finally she took that step. It is very difficult to say, under the circumstances of the case, that she was not justified in taking it. We do not attach much importance to the contention of her counsel that, during these three years, she had waited upon him as a nurse and had not cohabited with him as a wife. Cohabitation as a wife with a prostrate paralytic would, of course, be impossible, in the ordinary and full sense of that expression ; and there is no evidence that any such cohabitation took place, .though such evidence would not, perhaps, have been admissible against the objection of the plaintiff. On the other hand, it is possible that, if the matter were very material, she would not be heard to say, on grounds of morality and decency, that she had lived with him and slept in the same room with him for three years, as his nurse, and not as his wife. During this period she slept on a lounge in the same room with him, where she could be near him to wait on him during the night. She admitted that on one occasion she had lain on the bed on his arm. Without going further into these details, we take it to be a fair infer
But it is settled and familiar law that that cohabitation which will condone past matrimonial offences is conditioned upon future good behavior of the spouse whose offences are condoned, and that when, after the condonation, the offences are repeated, the right to make them a ground of divorce revives. Twyman v. Twyman, 27 Mo. 383; Wagner v. Wagner, 6 Mo. App. 573.. An eminent writer on the law of divorce, speaking upon this question, uses the following language: “ Special caution is necessary in applying the rules of condonation to cruelty. Not their letter, but their spirit, should be the guide. We are to consider, when asked to infer condonation from subsequent cohabitation, the peculiar nature of the offence of cruelty, as generally witnessed, developing itself by degrees, and so slowly as seldom to reveal, even to the sufferer, the precise line between the endurable and the unendurable; the difficulty which the wife experiences in making up her mind, in an hour or a day, whether she can longer bear her burden ; and that, often, she can not know certainly and at once whether or not she is in bodily peril, which is the true criterion of legal cruelty, and that, while in suspense, she must continue to cohabit; and,
It should, perhaps, be observed that there is a considerable discrepancy between dates of the offences as laid in the petition and those exhibited by the evidence. The petition seems to place them between the date of the marriage and June 1,-1887, or thereabouts ; while many of them, according to the evidence, took place at a subsequent period, though prior to the institution of the suit. We do not regard a variance in dates as material, where no objection on the ground of sixch variance is made in the trial court. If such an objection had been made, no doubt it would have been followed by an amendment of the petition widéning the dates; and there is nothing to indicate that the defendant was in any way prejudiced by the wide range which the evidence took in respect of time.