68 Mo. App. 205 | Mo. Ct. App. | 1896
The parties to this suit were married on June 8, 1894, and separated January 15, 1896. Immediately after their marriage they took up their abode with the defendant’s family, which consisted of his father and mother and two married sisters. They boarded until the summer of 1895, when they rented two rooms in the second story of the house, furnished them and began housekeeping. The plaintiff sues for divorce. One of the alleged grounds is that on divers occasions during the time plaintiff lived with defendant his mother and sisters offered her many indignities, which rendered her condition intolerable. Specifically stated the indignities were that a few days' after the marriage the mother, after learning that the plaintiff’s father did not own the house he was living in, said to plaintiff: “Well, if I had known it, Arthur (meaning the defendant) never would have married a poor girl,” and that on the fourteenth day of January, 1895, she
Concerning the overt acts of the defendant, the petition states that in March, 1895, plaintiff was at her father’s house for a month, and that during that time their baby was born; that defendant seldom came to see her, and then only remained for a few minutes, and that after plaintiff returned home he spent his evenings away from her, and visited various places of amusement; that on November 18, 1895, she put her arms around the defendant’s neck and asked him if he really wanted her and the baby to leave him, when he violently pulled her arms' from his neck and hurled her across the room against a wardrobe, and that on January 14, 1896, he ordered her to leave him.
The defendant admitted the marriage and separation but denied all other allegations.
Upon a hearing the plaintiff’s bill was dismissed and a judgment entered against her for the costs. She has brought the case here for review and complains of the action of the court in excluding competent evidence offered by her, and. further that under the evidence which was admitted, the decree ought to have been for her.
The plaintiff offered to testify that the defendant (in her presence) spoke to their child, which was then about nine months old, and said: “Well baby you will trust your mother a good deal more than I; you are not afraid that she will poison you.” Upon the objection of the defendant, the evidence was excluded. It is insisted by plaintiff’s counsel that this was a communication in the presence of a third person, and hence could not be treated as confidential. We can not agree to this. The reason for the exception to the rule, which excludes all conversations between the spouses as being privileged, is, that by talking in the presence of others they voluntarily remove the seal of secrecy. The reason for this exception fails when the conversation is had in the presence of an infant or other person totally incapable of comprehending it.
The only act of cruelty testified to by plaintiff was that the defendant angrily tore her arms from his neck
The plaintiff’s evidence was to the effect that during the period of her confinement at her father’s house the defendant did not visit her as ■ often as he ought, and that he remained with her but a few minutes at a time. In this she is in a measure corroborated by her father’s testimony. The defendant testified that he visited her frequently and remained with her as long as his duties to his employer would admit; that he did not spend the nights at his father-in-law’s house for lack of sleeping accommodations; that he would have spent more time with his wife but that he was rate clerk in a railroad office, and had to work evenings in order to get through. Accepting the plaintiff’s statements as true the facts would not amount to indignities within the meaning of the statute. It is just, however, to the defendant to say that all the testimony shows that he did visit his wife during her confinement at times, and that he himself testified to having visited her as often as his business would permit.
We are of the opinion that the judgment of the circuit court will have to be affirmed. It is so ordered.