87 Mo. App. 32 | Mo. Ct. App. | 1901
These parties were married in June, 1898, and lived together after a fashion until May, 1899, when there
As appellant earnestly insists that the evidence did not warrant a decree in respondent’s favor, we have carefully perused the entire record in order to pass understanding^ on' the matter. The testimony of the plaintiff is that her husband never ate but three meals with her after their marriage, although they boarded at the same place; that almost from the first he would sleep in a separate room at the hotel and only came into hers for a moment or two occasionally. This continued from June, 1898, when they were married, to October of the same year when he practically ceased visiting her at all, she says.
She testified further that he circulated reports charging her with improper intimacy with other men. She upbraided him for this in the presence of witnesses, when he declared the statement was true and that certain parties had. come out of her room. The testimony of the witnesses for the plaintiff shows this accusation was made by the defendant in a way
A witness by the name of Zachritz talked to Lynch and he swore the latter told him he was firing a passenger run one night and went to his wife’s room to change his overclothes and when he went over there, there were a man and a woman in the bed. Lynch didn’t say whether it was his wife or not, but said it was her room; that he didn’t know whether it was she or not, 'but was satisfied that she was not true to him. Mrs. Houston, who kept the hotel where the parties boarded, testified that she told Lynch his talk about his wife’s character was false and unwarranted and he knew it, to which he made, no answer, except that his wife could have whatever she wanted, “but to live with her he never would.” It appears that he paid his wife’s board.
The testimony of the defendant himself as to these matters is evasive, unsatisfactory and in conflict with what the disinterested witnesses swore. He in effect admits he ate his meals at a different table from the one his wife sat at in the same dining room and occupied a separate sleeping chamber, attempting to excuse his behavior on the ground that he got in from his runs at irregular hours. He testified as follows: “Q. How often have you eaten with her since you have lived there? A. I never paid any attention to it. Her meals were ready when she wanted to go and eat and mine were. I agreed to pay for them and that is all there is to it. I can’t lay off and stay at Newburg because a woman wants me to. I might be in there fifteen minutes or an hour or four hours and if she has got a room and everything she wants, what more is necessary. That is all you can expect of a railroad man and if she wants any more than that she will have to get somebody else.”
In an action of divorce, a plaintiff' is as much entitled to a decree when the evidence establishes a statutory ground of relief as in any other action, and a court has no discretionary right to refuse it. Ulrey v. Ulrey, 80 Mo. App. 48; Kilpatrick v. Kilpatrick, Ibid 70. The only question to be determined is whether a cause prescribed by the statutes has been made out.
An exception was saved to admitting Mrs. Lynch’s testimony as to the charge of infidelity for the reason that confidential communications between husband and wife are privileged, but we find no testimony as to communications inter sese. Mrs. Lynch swore only to what transpired between them in th<3 presence of third parties who were called to witness it. This was unquestionably competent. Schierstein v. Schierstein, 68 Mo. App. 205; Long v. Martin, 152 Mo. 668; Ayers v. Ayers, 28 Mo. App. 97. The further contention of the appellant is that, even granting he made the charge of improper intimacy against his wife, it constitutes but a solitary indignity and as such does not authorize a decree. We assent to the proposition of law invoked, but not to the contention that only a single injury was shown. The defendant’s conduct throughout the brief married life of this unhappy couple was highly reprehensible and tended to continually affront, wound and humiliate his wife. His steady refusal to eat his meals at the same table with her when they were to
Joined to such persistently distressing and humiliating demeanor of the defendant, extending practically over the period he and the plaintiff lived together, or in the same hotel, was the charge of her improper relations with other men. He attempts to palliate this by saying that when he learned it was not her room he saw the -alleged incident in, he said no more about the matter and it was all right. But this is flatly contradicted by the testimony of Mrs. Houston and Zachritz as well as Mrs. Lynch, to all of whom he asserted he would never live with her, while to Zachritz, who was acting as a committee appointed by a lodge to inquire about their relations, he stated he was satisfied she was unfaithful to him.
His conduct was in keeping with what he said, and indicated an aversion to and contempt for her. It is apparent he made no effort to dispel the unjust suspicion he had aroused about his wife, either by speech or action, nor to retract the charge. On consideration of the entire evidence we do not find cause to interfere with the judgment, which with the concurrence of all of the judges, is affirmed.