*1 48 from De- child maintained this supported shows whatever 1937, assistance May 27, without 1922, to 7, cember is sufficient Although this evidence we think defendant. to make it would be well jury, on a retrial to the the case to submit items furnished the various greater particularity

proof with were necessaries. the mother re- court for to the circuit and remanded reversed cause is J., absent; Smith, Allen, J.,P. conformity opinion. this trial concurs.

OCTOBER, 1937. Respondent, Andris, Defend- Plaintiff, Andris, Juanita v. Albert Appellant. S. W. (2d) 707. ant, 109 Opinion Appeals. 1937. Nov. St. Louis Court of filed Rendlen, appellant. White <&Bendlen for *2 respondent. Berryman Kenwood and Kulse Kulse BENNICK, Andris, C. In this action Albert Hannibal, Missouri, wife, seeks a a resident divorce Andris, and from a of the Hannibal decree Court of Com- Juanita awarding prayed, Pleas him a appeal mon divorce defendant’s perfected this been in the usual course. court has sixty-four being years age Plaintiff lacked but one month of marriage defendant, May time 21, which occurred on before, 1932. He had been married twice time in first marriage and the second in 1906. The time first for a endured year, little over a and then ended in a divorce ob- tained from his wife courts Hannibal. The second wife, terminated the death of the which occurred in No- vember, 1930. daughter marriage,

Plaintiff’s child is a his first who is referred to in the evidence as Anna Watson. She is now about thirty-nine years age, married, and also resides Hannibal.

Plaintiff carpenter by trade, is a calling, and has followed his successfully rather seem, only would from the time he was thirteen years age. fourteen As a result of Ms labors has he accumu- lated property Hannibal, consisting considerable in of a brick house Lyon Street, on including garages two with rental accommodations for nineteen automobiles; two-story a brick house and a one-story brick house, both upon situated a tract square of land two blocks on Grand Avenue; carpenter a shop Street; on Market and a half interest in house, a double side, with four rooms to the on South Seventh Street. So far as holdings of Ms real concerned, value estate plaintiff $10,000 $15,000 estimated he had Lyon invested from in the property; $25,000 Street at one time he asked for Ms Grand Avenue put property; he the value of property Street at the.Market $2000; he stated that the two $1500 houses on South Seventh in worth each normal times. In this, $3000 Street were addition to ownership testified to his of a for $1000; he note 30 shares of Theatres, Incorporated, in Hannibal, upon stock Price steadily getting dividends; he had been and some stock of an un- Company. determined value Hannibal Trust thirty years age Defendant was about at the time of her mar- riage plaintiff, and had been before, married thrice once to a Walker, Miller, by man named and twice to man named whom she daughter, Palmeta, years had a who is now about thirteen age. prior marriages Each of defendant’s in terminated a divorce in her obtained favor. Glascock, father is one Frank switchman,

Defendant’s a railroad plaintiff acquainted “boys had been with whom since to gether.” life, He had of course known defendant all of her great disparity ages personal because of the their had had no along contacts with her until 1931 or thereabouts began when she renting garage space Lyon from Mm at Ms Street property. operator beauty parlor of a Defendant was located at opposite plaintiff’s carpenter time on Market Street shop, and be- parking regulations municipal cause of found it convenient to rent garages space plaintiff’s one which was located the rear of his home, only or so from her place going a block distant of work. In garage frequently plaintiff to and from the defendant would find yard, occupied in and about his and in their casual conversations together assisting garage he her with while would the doors of the complain to her of his loneliness unhappiness. took occasion together, Then shortly came occasional automobile rides followed becoming frequent a more or less visitor at defendant’s parlor, in turn beauty ripening with this soon into a courtship to party having each disclaims the honor of moving now been the spirit, showing marriage but with record that the license was ob- by plaintiff, not, April tained whether defendant’s insistence or 27, 1932, although marriage performed was not for almost a month thereafter, May or until 1932. through

All question the case runs the stressed purely mercenary whether motives, defendant married not because of love or affection for him or happi- interest may ness and welfare. "Whatever her motives been, she un- questionably property, knew that was a man of period courtship appear would to have made some in- quiries regarding holdings. at least the extent is, however,

The fact far displaying that so an interest in subse- rights quent property concerned, plaintiff given seems to have great deal of attention to the matter on his part. own ad- He mitted that he not desired to have a contract executed marriage, before marry but told defendant would not *4 sign her unless she would such a contract. He selected his own attorney preparation instrument, for the of the and a week or so before the alone the attorney’s went to office and had a prepared conforming contract to his own wishes in matter, the the purport provide of which to was that the event that defendant widow, should survive him as then, dower, his in lieu of homestead rights, like, she should a the estate in the receive life Grand properties, Avenue and Market paid Street and should be the sum in cash out of his $500 estate. plaintiff Later took defendant with him attorney’s to his office where the contract them, was read to both of and after its execution any objection without part, on defendant’s duplicate copies were handed over to who took them to placed his home and them in a lock kept box which he in the sideboard and to which he alone key. later, had the Some months plaintiff when go had occasion matter, the box on another he found that it had meanwhile been tampered key that with and box missing key was off his lock, upon opening the box thereupon ring. He unsoldered among its were not copies of the contract that the two discovered attorney’s prepared from his copies had additional then contents. He Shortly box. afterwards these the unlocked copy placed

file go again, found that the to the box additional he occasion to had missing. were likewise copies of the contract disappear- for the charges responsibility defendant with Plaintiff no for his sus- contracts, though suggests he actual basis ance of in the box than the fact she knew were picion other profit, together might disappearance, their stand days discovery a few had further fact that before his the.box brought keys neighbor- opened to him been defendant had at the engine fire house where he and certain his cronies ac- hood were daytime. during the In fairness to her should customed to loaf keys openly to him stated, however, she delivered the testimony explana- any concealment, at her own pretense without being tion of to take them to that “Mr. Andris happened how she garage keys any leaving place. had a habit of He would lock the hanging laying in the I found them door and leave them door. door, thought it, day, they anything one I about and never ‘ said, department your keys I fire Pappy, and went to the here is ’ ’’ you garage. left in the possible Who than defendant a other could have had motive doing away disturbing creating with the contracts or otherwise situation house is left conjecture. about the to surmise and It appear does from the evidence that all well between daughter; and his that she any had never visited at his home at during period time marriage; his second that while called to see him period twice ten months that he and living together, always defendant were it was at a time when defend- ant away from home. As to this testified that “she wouldn’t ’’ my come couple when wife and were there. There were also a occasions and defendant returned home and found that house had been entered some one their absence and the dresser testimony drawers and like rifled of their contents. His was that no keys but house, one defendant irrespective any one key whether else was known to have not, may or whether else one have so resented presence defendant’s cause, the house as to have wished to her unhappiness, the fact re- mains that but little reason pointing exists for finger of sus- picion herself, at least in defendant the matter entry into disarrangement house and the of its contents. *5 It was December, 1932, around the first of or about the time of' plaintiff’s discovery that his lock box had been opened and the' copies it, contract abstracted from that diffi- serious began develop culties between him and Up defendant. until that marriage, or six months of the he makes no time, or for the first five or complaint about defendant’s conduct attitude toward particular from that time con- him. However on their lives filled with 25, bickerings wranglings, finally, stant on March de- home, parents’ where, fendant left returned to her fact, already spent she had considerable of her time after the first of year during periods of severe illness to she had protracted subjected. been 17, 1933, alleged

In petition, which was filed on June him- throughout period faithfully the marital he had demeaned self as the husband of defendant and had treated her with kindness times, believed, just and affection at all but that' as defendant he alleged marry herself persons, to have told various that she did not any him him, love or affection for or interest in his because happiness welfare, getting or purpose possession property. of his alleged then antenuptial

He the execution of the contract and its subsequent disappearance box, from his lock and that from and after discovery time of disappearance began of its defendant neglect her duties to him their display home and to an attitude him. viciousness toward charge throughout

Then period followed the said she absented him every day herself from and their home almost in the afternoon evening late night; until hours of the failed and keep order, refused to the home clean and in and on numerous oc- casions failed and refused to meals for him or to prepare wash the by him, dishes used him; that she cursed and abused and addressed him profane language, applied and obscure vile names and epithets him; that on several spirit occasions she exhibited anger presence and bitterness him in the toward of visitors in their by slamming by addressing home doors and him an un- ugly and becoming manner ; that on other he occasions when entered the unlocked, home clothing he found outside doors and other articles floor, removed from dresser drawers and scattered over the all of which he purpose believed was done defendant for the tormenting him; and that on one occasion defendant accused stealing money her, day the same accused him of stealing everything possessed, he although she knew there was no foundation in truth for such an accusation.

Finally alleged subjected that defendant had him all of said indignities provocation without part, cause on his said indignities intolerable, rendered his condition in life in conse- quence prayed matrimony that the bonds of contracted between him dissolved, granted and defendant be and that he be decree of divorce. answer, following

Defendant’s an admission of fact of the *6 54 allegation every other of each and general denial

marriage, was a petition. in the contained resulting, have al- joined, as we the issues upon trial A was favor; and now plaintiff’s indicated, entry of a decree ready in the made point appeal, with on defendant’s is before us the case himself prove not strenuously upon plaintiff did insisted should injured party, petition- and that his an innocent and to be been dismissed. consequently have proved himself plaintiff question of whether far as concerns the So nothing to case than more if injured party, there

to be an this to the controverted evi- deference, applied rule of due concluding with undoubtedly us in adduced, warrant would dence in her relations with at fault that defendant was court the lower full respects measurp and to the though in all the plaintiff, petition. charged against her in the by plain- suggested, point most already stressed

As has been purely him for married throughout the case is defendant tiff n for any love or affection mercenary motives, and not because of this have no As to we happiness in his and welfare. or interest by motives to a prompted mercenary that defendant was doubt marriage undertaking plaintiff, to but greater- or less extent itself is fact in and of so, in mind that that it must be borne even statute, importance is of ground under our no for divorce may support plaintiff’s to version only in far as it lend so case postnuptial disclosing motive for possible facts controversial Indeed, plain- upon him defendant. indignities allegedly heaped young that a woman defendant’s hardly expected tiff could romance, of mere marry spirit as he from age a man so old would responsibilities willing wife, all if to become his she was great her, no upon entail then relationship would such new regard having for for had some blame could have attached to her only that it had nevertheless security, provided her future financial faithful purpose intent to dutiful and been her marriage him re- obligations which in conformance with the quired that she assume. petition that defendant charge laid in the

So far as concerns perform neglected to home and refused and herself from absented surely have had duties, think that could her household we away from Her great complaint that score. time no for on cause plaintiff’s own evidence beauty parlor, as even spent home was plaintiff’s 'part attempt some little disclosed, and while of her give up opei’ation requested her to to show that he had him, significant fact- is that beauty marriage parlor after her her to do so. possible he never made it personal of her own to bear most Not defendant forced faced marriage she was expenses addition after support with the matter of the daughter, and education of her little only eight old, years anything who was and had never received gave toward her from her father. maintenance Plaintiff no home girl to the little after her mother, but she was left *7 grandparents, instead to reside with her where defendant was com- day pelled go accompany each in order to child to She the school. day mother, did her have lunch each with but in no other sense was household, sincerely she a member of the plaintiff and if had desired home, that have away defendant no interests from then in all fairness longer he should have seen to it that such outside interests were no may necessary. It well be true that defendant’s housework suffered beauty of expense parlor, at the somewhat but view of the difficult unusual and' situation with she was confronted she expected done as seems about well as could have been of her have under circumstances. the is upon

Indeed there still a further fact to considered the ques- tion neglect duties, of defendant’s of her that household which is during period March, of from much the December to of it is plaintiff chiefly that complains, ill a she was and under doctor’s care. little, As to the truth of if any, dispute this there is but in the record. 4th up From December to December 28th was she laid influenza, with an of during January attack of months February bladder, suffered first from an of she acute inflammation and then a ptomaine poisoning, from serious attack of of the effects yet entirely which had not left her at the time of the trial below. plaintiff covering Indeed paid himself the doctor’s bills the treatment received, very his wife poor grace therefore came with from him complain as of he did defendant’s failure to have washed windows, floors, given period scrubbed and the like over a he knew ill that she had been and confined to her bed at extended throughout very intervals time.

The period credible evidence discloses that it was December plaintiff began practice to March of frequently playing night cronies, cards at including with certain of his one “Koozie” Franzman, odd-jobs a man neighborhood, sort in the great seems spent part who to have a of his on premises. time The principal activities, kitchen was the scene of their their save that drinking plaintiff kept done in the basement supply where of wine. Plaintiff’s their evidence was that conduct these occa- quiet orderly, sions was while defendant’s evidence was that boisterous, including all the men, plaintiff, were loud and their language general commonly by conduct profanity characterized vulgarity of the vilest sort. that, charge spirit anger defendant exhibited and bitter- ness plaintiff presence by toward in visitors the home slamming by addressing unbecoming doors and him in an ugly and pres- toward attitude question is directed manner or four plaintiff on three associates house of these ence in the latter on one occasion admits that Defendant

nights a week. disgust expression an of her slam the door she did part of March men in degrading says conduct was the vile she at what no course, that she had contends, of kitchen, while temper displayed. of ill she the outburst provocation or excuse for extenuating we circumstances though there were But charges lodged many specific respect to pointed out with escaping conclusion defendant, is no against still against support her in strong case that he make out did profane him, him with addressed charge and abused cursed him, epithets to names and language, applied vile and abusive sW bore any other than that conclusion all inconsistent with hap- genuine regard personal for his love or affection no no of such conduct quite It and all true that piness welfare. witnesses, in so defendant and emphatically denied give are dispute facts of the we constrained far as the case are *8 court, particularly are findings of the deference to the lower due result must in a where the ultimate persuasive case of this character credibility upon question of the of the witnesses. depend so much the defendant, aspects the case regardless of the fact that certain of So adjudged a favor, a to be may in measure in her is nevertheless react divorce, brings guilty meaning of law party within the the proper then the what is to be said about the due and question us to discharge plaintiff’s obligations defendant. own marital toward words, principle of of divorce

In other it is a fundamental the law complaining to a in his party that before is entitled have decree favor, enough merely it to was an own is not for show injured go proof to that he party, but must forward with show App.), party (Mo. was also an innocent well. v. Kistner [Kistner 741; (2d) 106; (2d) 89 (Mo. App.), S. W. Miles v. Miles 54 S. W. 685; S. v. Libbe, App. Libbe v. 157 Mo. 138 W. Schumacher App.), 14 (Mo. (2d) 519; Schumacher W. Ellebrecht v. Ellebrecht S. 209; (Mo. 243 236 W. (Mo. App.), App.), S. W. v. Coons S. Coons 358.] my complaints, plaintiff requested As “I one testified: wife floor, to wash the windows and scrub the kitchen other floors. washing did not . . no She do it. . There was windows or scrubbing during complaint, last This floors months.” five moreover, despite wealth, undisputed plaintiff’s fact grievously during greater part fact that ill defendant five prior separation. last months language wife, plaintiff As character of own toward his I a I her, admitted: most I ever said about called her liar. “.The liar, many. many very don’t know times I her a not I how called it, lie, didn’t me I put cuss told told words with it. business of I make no didn’t a liar. ... her she was got maybe did, I she ain’t pauper, may her a I have called . . . ’’ nothing. “I wife, plaintiff testified: of his support of his In matter bny between money to clothes gave her some money exactly. I sent much, I don’t know separation, very I money myself when was house, gave her and I up twice bought clothes she pay for some ... I declined up there. pay go me to told paying about and he

and consulted Mr. Hulse It didn’t two or three dollars. I That bill was for did. buy anything on credit. anything I her not to amount to told money for the anything, I told her to ask Whenever she wanted for some three dollars was give I it to her. That two or and would money gave her money for gave I her some Christmas dresses. clothing going get she was when she was sick. She said may occasions. She gave I her. have been other There money long wasn’t there very for clothes. She bother me much didn’t money clothes, gave I it to her. for enough. When she asked for $20,00 during times at different given $30.00 may I clothing support. She didn’t for together lived ten months we married. . . . She time we were bring many there at the clothes things.” liked nice plaintiff and his cronies the habits of With reference to ’ week, nights a or four in the kitchen on three congregation their cards, I had playing men were “When these plaintiff testified: . men folks would chew to use. around for them We spittoons I floor. ... used tobacco up the Mr. Franzman cleaned spit. my ask around there. didn’t spit tobacco and chewed too and up.” cleaned you that was ‘Koozie’ up. I told to clean that what wife plain- “Koozie”, was called as witness Franzman, or who *9 beauty running parlor a she was tiff, “I testified: understood her of there business she went . . . and know attend gather in house men her time we would evenings. That is the play Had tobacco and cards. and chew kitchen, and smoke three, or four hours would sit in the kitchen where we spittoons there cigarette We tobacco, cigar and stubs. throwing spitting, time at a or four times . . That went on spittoons there. . three had two from that . home . . She would come there in the house. a week around tén-thirty. draped men be We would ten or work about smoking cards, chewing and fashion, playing in that her kitchen tobacco.” kitchen up his associates litter plaintiff

And not did by their own ad- they themselves disclosed fashion as unseemly well, into the basement as missions, their activities they but extended and, a con- wine, .in the absence of go to drink would where located pipe use of a screened drain toilet, venient would make 58 leading floor. stairway from the first These

underneath down men, most of defendant’s incidentally, were who were critical testimony regard in that are housekeeping, and from whose we in the asked to believe that her lack of cleanliness and orderliness pronounced plaintiff home so entitled to a divorce. as have evidence, plaintiff’s which, from as a matter These few extracts own testimony, fact, part of have been taken in considerable from his own reveal true unmistakable his attitude toward defendant clear and fashion. We do not that can read the record this believe one regardless of being thoroughly plaintiff, case without convinced any shortcomings arrogant part wife, himself domineering defendant, niggardly miserly in the matter toward illness, of her support, unsympathetic incon- toward rights feelings, lacking display in the siderate sincere love for her. affection appreciate plaintiff’s

Of course we will not own misconduct prevent being serve to entitled to the status an inno- cent party regards right may to a unless it be divorce said that his misconduct was of a such nature as to entitled defend- ant to a if she divorce had asked for such relief had herself been an innocent party. (Mo. App.), v. Rankin 17 W. S. [Rankin (2d) 381; Jones, 632, 481; Jones v. App. 208 Mo. 235 S. W. Wehren- brecht Wehrenbreckt, 290; v. 200 Mo. App. 207 S. W. Tebbe Tebbe, v. App. 1106, 21 (2d) Mo. S. W. However we 915.] think that under the facts of the ease this rule of law avails nothing. asking Were defendant plaintiff, for divorce from position any personal be held free from blame for the marital parties difficulties in which the themselves, find could it be seriously argued, light plaintiff’s own admissions and the implications unmistakably therefrom, follow that she was an injured party meaning within the of the law? short,

In we cannot escape regardless the conclusion that undoubted basis there is in case believing for was an injured party, he was nevertheless in no an party, innocent sense and with disclosing, the record so is no recourse us give effect to persuasion our own case, which is that upon record, the whole has not showing borne his burden himself to be entitled to the relief he asks. accordingly The Commissioner recommends judgment that the ren-

dered the Hannibal Court of Common Pleas reversed and the cause remanded with judgment directions that a new be entered dis- missing plaintiff’s petition. foregoing PER opinion CURIAM: The C., adopted Bennick, *10 as the opinion of the judgment court. The of the Hannibal Court of Common Pleas is, accordingly, reversed and the cause remanded in

59 the Becker Commissioner. the recommendations with accordance J., concur; Hostetter, separate P. dissents McCullen, JJ., opinion.

Dissenting Opinion. regret my inability concur either the HOSTETTER, P. J. I opinion in the instant reached, employed, or the result reasons adopted Bennick and prepared our Commissioner case which was of the court. judges opinion as the by my brother non-statutory this erroneous majority opinion The contains words, “In it is a funda following language, other rule in the viz: complaining before the principle mental law divorce that favor, enough it is not party is a decree in his own entitled injured party, he must merely was an but for to show party also an innocent as go proof forward to show he was ’1 Appeals. well, citing only from Courts of cases showing language also portions opinion contain Other that he spouse seeking she, the divorce must show case may be, injured party.” is the “innocent and 12,

Prior the word “innocent” was contained to March 1849, proceedings parte, which are not ex which relates to divorce statute Missouri, (Mo. Ann., 1350, 1929 Stat. now Revised Statutes Section on that 1350, 1552), an amendment which took effect p. sec. leaving out, the clause read- date, word “innocent” stricken ing as follows: injtired party, . of the causes above enumer-

“. . matrimony.” ated, may a divorce from the bonds of obtain [Laws mine.) 1848-1849, (Italics Missouri, p. 49.] Hoffman, change 547, in Hoffman v. 43 This was noted Mo. de Supreme case, I have cided in 1869. No Court been able to find, rule in sanctions this error. true contested divorce eases seeking the party that the divorce must come into court with clean litigated. hands, and this refers to matters to v. [Coons 358, 363, (Mo. App.), 296 S. W. l. c. and cases Coons there cited.] instance, if the from his on the For seeks divorce wife husband ground proves charge, proves adultery and the wife guilty offense, of a he is not he also is similar entitled to a decree divorce. change 1358,

No made what is now section Revised Statutes (Mo. 1573), Missouri, Ann., p. clause, Stat. sec. then now, reading as follows: proceedings parte, . . In shall “. all cases where the be ex shall, grants divorce, require proof good court before petitioner, conduct of the and be satisfied that he or she is an injured party.” (Italics mine.) innocent and prevailing spouse do not contend that in a contested divorce

60 injured party notwith- as an innocent as well an should case out of statute dropped from “innocent” was standing the word strenuously very to object But I do set out hereinbefore. “inno- the word put on construction and far-fetched unreasonable anon. But more of that majority opinion. cent” unsupported an unwarranted majority opinion The contains alleged recital of plaintiff’s characteristics and a appraisal of testimony by and is even conduct, supported is not bad large admissions. extent defendant’s own contradicted to domineering toward “arrogant was opinion states support, un- miserly matter of her defendant, niggardly rights during illness, of her inconsiderate sympathetic toward affec- lacking love or feelings) display sincere ’’ for her. tion on this I from the record defendant’s sworn admissions quote cross-examination, subject, viz: taken from A. signing contract? “Q. the trouble was over the second So all May? A. sir, was, Q. You married Tes, Mr. Henwood. were things Q. warm Yes, sir. From that on to fall Albert made enough you got along May on to No, there? A. fine from we Q. began things got colder, in other come, fall. When the snow they, ways house, physical temperature than the didn’t didn’t chilly you things begin get Albert? A. cold and between lost, Q. After the The whole contracts were about 1st October. Yes, here is contracts? A. sir. trouble over and these property Q. Yes, Q. lie volunteered contract? A. sir. the second But you sign No, sir, give wouldn’t them? A. I s’aictif he had me why changed. Q. what he to at first should he want it Did wanted you changed only ever ask Mr. he I why them? A. in" Hulse say Why you go Mr. Hulse’s office once. didn’t down and ÍJ. Hulse, you by changing Mr. “What do mean these contracts me? I I I A. said Mr. Hulse was for Mr. Andris and was afraid knowed Q. give justice. why you go? me That A. wouldn’t didn’t Yes, Q. you changed sir. Do think Mr. Hulse the contract? A. know, changed. Q. (Albert don’t 'When were did Andris) gone? Along discover thé contracts were A. Q. last of or first of November. October You had been married Yes, Q. four or five months? A. sir. He built that home lady his married with the referred to as Lizzie? A. He told life Q. pretty me that? seen thát You had house that Albert twelve, eighteen years ago? really built some fifteen or A. I hadn’t it, you Q. Oh, just noticed tell truth. You had seen it? A. Q. nice, outside. It a attractive little A. It is a nice place? very place, though, Q. found it little small four rooms. You you very comfortable when first went there? A. It is nice for two. Q. willing You if A. Sure. gave you? were to take it Albert it your ear in .putting house and driving had been Q. You you years and Albert before, or two before year or two garage anything against Yes, Q. You didn’t have sir. A. married? place? A. It was a nice an attractive you, it was house did it, it? A. lot of fine wood doesn’t has a Q. That house place. woods, walnut, all kinds of selected cherry, some Q. Some Yes, sir. *12 wife, fancy, fancy of his the and the to Albert’s a home built it was home? time, it a nice comfortable at that was lady his wife who was in include that the new con- Q. And when he didn’t Yes, sir. A. Yes, A. sign new contract? you and refused to the balked tract from that time on to the end there trouble sir, Q. And was did. Q. you Yes, sir. I believe stay in the home? A. your questions of Mr. Rendlen’s Albert was in to one said answer discovered_the missing? Yes, A. you until he contracts were good to complain up until that time ? A. gave you no cause to Q. He sir. No, sir.” take, that, derogatory that the statement contained we must So justified hereinbefore quoted certainly was not opinion learning disap- considering plaintiff’s prior conduct of the signed antenuptial from the the two contracts box which pearance of home. kept in the sideboard at the It was after kept locked was alleged disappearance of these two contracts when the bad con- the in majority opinion, the started. It duct of the claimed secretly removing in these the defendant’s conduct contracts was spouses. which started the war between two There was but one the by ring. key box, plaintiff on a this carried Defendant had ac- only key. the person profit cess to the She would be who would acknowledged taking signed having the After out contracts. importuned plaintiff property to deed her the residence and certain having failed, apparent properties secretly other it is she papers .removed the from the box. seemingly majority A effort in opinion studied made the

n throw suspicion plaintiff’s thirty-nine year on daughter by old marriage by taking papers first these from the tin box also the n suggestionthat the open house two times was thrown and drawers places sideboard and other in the house had been invaded person. plaintiff’s daughter by (cid:127)some unknown his first mar- riage (Mrs. Swartzburg) Anna opportunity had no tamper box, the tin key because defendant had the which open it, would n ring pocket, and, besides, which carried it would have against as_a prospective beneficiary been her interest of her father’s estate to have had contracts removed and destroyed, and the alleged person unknown who entered house things and scattered around indiscriminately, pulled drawers, out scattered con- tents, lights burning left in the closet and unlocked, doors could fur- .nish respect no solution in identity to the of the person who re- signed tin box these incidents contracts from the because

moved the missing plaintiff papers were place after discovered took rightly these un- attributed tin box. But to the meanness of defendant mysterious occurrences toward irritate him. seeking to bedevil and gone, papers learned that these he'went soon as As latter, request, got third, Hulse’s officeand the at his Mr. back to prepared his files and new copy, he had retained for unsigned signed duplicates of the had and ac- exact two which been copies, knowledged disappeared from the tin box. Plaintiff asked refused, saying sign again. had been them She her to sign This false and changed and for that reason she would them. contracts, signing kept up for not until excuse unfounded indignities continuing keeping up thus separation, the final was, plight This made her husband’s unendurable. substance charging guilty unprofessional that Mr. Hulse conduct as lawyer changing contracts, and of fraud in also on the fraud having changed part disadvantage. of her husband them to her preparation antenuptial Ben E. Hulse testified to con- *13 triplicate plaintiff in at tracts the instance and to the subse- quent appearance and defendant at his office where he both, notary the contract over to them read then in was called they signed acknowledged both of them he kept two third, unsigned one, files; in his leaving that as his office “ ’’ paper defendant said: It is not worth the it is written on. also testified that

He when" returned to his officeafter the signed box, contracts were taken from the tin he made additional copies from the one in change contained his files and that no what- in ever was the two he plaintiff. made furnished I personally have known Mr. professionally Hulse many years. By fact, reason of that single do not believe a word of the charge against makes him. judge she The trial also, my personal knowledge, has known Mr. practically Hulse long as I have known him. It is evident that he did not charge. believe her plaintiff procured After copies new and after sign her refusal to them, he left again box, them thinking same perhaps she would ultimately sign. But, first, they like the mysteriously disappeared. doubt, No her motive was this: that the destruction of original signed acknowledged papers and the removal of papers the new unsigned, very which were would be much to her interest in the event aged died, her husband as she then, could in event, whether not, left a will or share a part in estate, widow’s which, of course, was better than provided for her in the marriage contracts. clearly game. That was

So, we a where, situation according have to her own admissions complaint against had no plaintiff until he discovered what he rightly perfidy and in deemed deceitfulness re- surreptitiously moving signed box; tin the two contracts from was then that alleged began. opened bad conduct She was the one who Pan- pent up dora’s box and let out the evils contained therein. It spouse well settled that one a law cannot create state affairs which disagreements is harmful spouse to the other marital cause profit by and then it. majority opinion quotes some plain- admissions from testimony

tiff’s acknowledged wherein he had called her liar on regarded one or more occasions. It is as somewhat uncon- ventional, least, for a liar, man call a woman a people some might better, using think it would be ugly instead the short and word, say, bow, “Madam, a polite you very with are economical But, in concededly with the truth.” view of the fact that she had charged attempts him poison her, charged with and had him with stealing money possessions from her all others, of his others, presence cursed and abused in doing and in so language vile, abusive, vulgar had used so so so and so obscene and revolting proper recounting it seems in them to in- use blanks language, stead of her foul can it a matter of wonder that he choosing language called a liar ? moderation in His to meet these false, vulgar charges, unprintable language, venomous and clothed is to be commended. ye knighthood

In olden times “when flower” and the female clinging type, probably more vine deference was more shown to her than in sex these modern times when women practically rights equal competitors with men and have become business, holding politics, jobs them in complex our indus- life, accountability trial and she is held to stricter than in the assigned by times when she was custom to lead a more ex- sheltered istence. *14 testimony something can visualize from the per- adduced

sonal traits of Albert Andris. fits trait Shakespeare He the Othello, man”, Moor, to the “a plain, ascribed blunt who described shortcomings my his as speech, own follows: “Rude am I in and phrase little peace.” blest with the soft of Plaintiff ad- had that of thrift. saving, and, mirable German trait trait, conpled He believed in faithful, efficient, honest, carpen- with hard at his work trade,, ter’s him enabled to accumulate the estate the substantial and owned, schemed, property he both before and defendant after the marriage, get paid He to title to. his wife’s debts in cash and up bills, money to no admonished her run that when she wanted spend get for to cash, her needs come to him and it in which was another despised. trait to be not

Indeed, majority opinion, it is conceded in the paid that he his “that, therefore, wife’s doctor bills and very poor came have her failure to washed did, he complain, him to as from grace of such ill- like”, he knew the when floors and windows, scrubbed complained ever that he testimony no record is There ness. was ill tidy clean she house and while keep the failure her at such time It from her illness. was had she recovered or before tin and refused box taken the contracts from had after slamming doors, night, coming late at when she was sign duplicates, game a social engaged playing insulting his friends who were and registered he him that showering opprobrious epithets on and cards at ordinary duties. neglect household at complaints his large testimony being man and some a as He described ordinarily sought to be shown it was in a loud voice and speaking as profane success, that he was counsel, but with little by defendant’s reputation profanity. for had man and he loud, that used uncouth, he he talked But, grant that life. Her him language, had known of all defendant profane switchman, been friend father, Glascock, a had Frank railroad majority opinion, defendant, as stated acquaintance an courtship period hav- “boys together”. Besides, the since in his parked first car year, for more than a since she ing lasted entertaining him began joyriding fre- taking him garage and dinners, parties, parents, of her at little where in the home at quently always therefore, she must been wine; furnished the alleged his and characteris- fully personal all boorish traits aware him with the faults foibles she “snared” and his before tics At becoming property. rate expectation the owner of ground personal complaint no for on account of his con- she had genital traits. him, guillible

“Albert”, intimate friends called deeply women”; versed in it was not so the “wiles and so designing defendant, being an difficult for who boasted about December-May men, marriage. him rope enchantress of old into this During “sugar” life, is, period the so-called of their married wedding months which until he few followed discovered marriage of the “tin had contents box” been rifled con- removed, paradise. openly tracts in a lived fool’s and os- She tentatiously pet names, him public, fondled over when in called whispered nothings” in his receptive ears, “sweet social parents’ home, ostentatiously, parties frequently at her she would flitting among guests, pause around chair Albert’s give resounding pleased impressed him a kiss. This Albert and guests.

But missing when Albert found the contracts “tin charge box” ugly and was confronted with the Mr. changed them, refusing sign Hulse as a ground new *15 that, reality hopes rudely to the stern awakened ones, he was the fabric of dream”. her were as “baseless as happiness with contains, many opinion plaintiff's references to the majority manners, ill-breeding and his to alleged loud talk bad fads vulgar language offensive profane, of the disclose testimony, to the defendant. cloud of witnesses ascribed This recount, proof allegation abundant support we will furnishes marriage that petition to the effect she furthered the for the procuring plaintiff’s property. fraudulent We will cite purpose appear majority do not opin- a few of these statements which ion. aged Hannibal Willingham, 41, stated that he had

Walter lived twenty-five years for and had worked for the White Laundry Star years soliciting Company twenty delivering laundry; for long prior acquainted well with the defendant mar- riage plaintiff; laundry she was a customer at which he worked; following shortly that the conversation occurred before marriage; approaching that he had heard marriage and had said you”, to her: “He is kinda old for replied: and that she “Oh, right”; something that is all that he said about “He is too old a you”, man for and she said she could take care of him. testifying

Further discussing the witness said that the property her parents where she and then lived she said to him: “I moved Avenue”, out on spoke Grand about the up house little and said that her pappy’s good but the house was hers also said, me”, patted “Just watch said, herself and “I will have it all it is over with”. before

Mrs. Matthew Herman testified that she was at the home of Mr. Glascock, and Mrs. parents defendant, at the funeral of Ford, Will brother of Mrs. Glascock; Mr. Andris said should have stayed at home and had company some of their home for din- allowing ner instead of all of them to come to the home, Glascock and that Mrs. Andris had said she wanted to come and help her prepare mother the dinner and he said she hadn’t helped all, her at and Mrs. Andris said him: “You are a God damn liar”.

This witness further testified that in another conversation she had with Mrs. Andris after Andris, she had left Mr. she if said Mr. give Andris would property on Grand Avenue and prop- erty on go $500 Market Street and she would back live good. and treat him Henry Franzman, a laborer who had known twenty years or more and had done work for him about premises, testi- fied that following about December May began away great remain from the home a deal of time, nearly every day; evening prepared by meal was Mr. Andris and him- self; that that was true most time; of that he remembers when

66 burning lights at three o’clock open and were found the doors table, laying floor, on bedroom; clothes on in the afternoon upstairs door found the the dresser drawers and across and some attic; that burning large in a and in the light closet open and slammed the she door incident when witness also he was cards; that playing Mr. Andris friends were with some March when her went in and asked Mr. Andris the door had slammed after she your go and shut back said: “You matter and she what was they finished came back and mouth”, that he then and God damned He that on another occasion game testified and all home. went home, he, Mrs. Andris and February at the Andris at the noon hour old, years daughter, nine about or ten and Mrs. Andris’ Mr. Andris to Mr. Andris: “I would eating that Mrs. Andris said and were brought that he basement and vinegar”; went like have some “I said, pushed it her it and some and handed and she back up it”; you poison in vinegar put have going to use that because am kind”; anything- she said, “I that that haven’t done he you haven’t, said, I said, are a-.” He “To convince “You said, “Juanita, you ought to be it”; ashamed will drink and that he your said, talking way daughter”; that yourself, before she of ‘ that ‘ ’ ’; that is all that occurred your is none of damn business That God there. Albert, they plain- that called

Witness further testified cleaning straightening that tiff, up the house asked about said, goin’ for damn son of she “I am not to clean no dirt God a bitch”. Franzman testified that in he heard Mrs.

Witness further March stealing say: Albert of “You Andris heard accuse not,” $5.00 from me” and that “I have stolen said: have, gone,” said: it is and that she are a “You said: “You you way get your liar all God damn and that is the rich bastards money, by stealing it.” Amon,

John a witness for testified that he been ac- intimately, quainted forty-three years, with Albert Andris about well; Knight Albert was there with and Newman he. Mr. Reeves Mr. Franzman and remembered the incident when game kitchen, playing a social cards about about March, when Mrs. Andris came in ten eleven o’clock and through fast, went the house and went into the bathroom and slam- wall; med door until shook the that the the bathroom bathroom up kitchen; got was next to that Mr. Andris went said, your asked her what the matter and she “Go and shut on your business”; mouth tend to own damn Mr. Andris didn’t say nothing He played and come back and cards. also testified that through frequently he had been house and that would see rugs edge dust on the and on the furniture. Herman, neighbor lived a (de-

Matthew who close to the Glaseocks Avenue, parents), and, them, occupied fendant’s Grand like dwelling by plaintiff, testified that in November, owned he was washing at the Andris home the storm windows and that Mrs. Andris him Mr. Andris had asked her to told wash the windows and she wouldn’t wash windows for no s-o-a-b-”. He “she told March, that he to the further testified went down Andris home in *17 got talking he there Mrs. Andris was and when about some broke; broke, that a rich rich fellow that went fellow town went broke, hoped glad that she was he went that she all these rich s-o-a-b got right get broke; money, and she said Albert had smart would money honestly. they get their said didn’t

He further testified that he was called to the Glascock home in part 1933, by part February March, latter of or first of Mr. morning to make a fire in the furnace about ten Glascock o’clock Andris, sitting sick, on that and occasion Mrs. who was room ' laying began davenport, on the called him in and talk about said, Albert and “I marry love, didn’t that Dutch s-o-a-b for I him money”; married for his her make heard that state- ment several times.

He present further testified as “I at follows: the conversation my Glascock home middle of March that wife testified my talking to. her Heard and wife and she said Mr. Andris wanted going her to do the housework she and said she wasn’t to do it. marry love, Said she didn’t that Dutch s-o-a-b for she married him money. said, get for his man, Also ‘When I tired aof I leave him dough get and take one, get and me another and when I tired him, I dough get of leave him take his me I another.’ re- taking member a note for husband, Juanita down to her An- Albert dris. That was about the same time that was sick. Mrs. Andris called me in the room and asked me to take it. opened Albert loud, note and it read out said the note asked for two dollars. Hand- gave ed me I $2.00 and took it and it to Mrs. Andris. gave "When I her, said, it to she ‘Is that all me, he could send stingy that old ” thing, s-o-a-b. There is got one sure has pay this doctor bill.’ Beeves, James a witness for stating after that he was in plaintiff’s shortly home at a time final separation before the Henry Mr. and Mrs. Andris and Franzman there, were in answer question to a as to what he burning heard about house, said the following: “As I went into the Mr. kitchen and Mrs. Andris was discussing property, heard her make a remark ‘before I’ll see that red- daughter yours headed get whore of a house, this I will burn it ” down.’ interesting It is illuminating to note specifically categorically every charge denied against mistreatment leveled any time or striking him at his wife He denied by the defendant. telling that she would threatening He denied her to strike her. even charges pois- her or leave. He denied sign the contracts have to brought for vinegar she said he drank of the oning. He in it charge put poison that he had refused it on her when she she claimed had been He others ate of the liver which for her. poisoned charges at- by her, that these him for demonstrate mere vaporings of blind poison not the wild tempted murder might conduct part, for excused rage on her treated her Norton, physician who condoned, Dr. to some extent 1933, covering time Mr. Andris when she claimed January not tell poison her, testified that she did attempting time, not until the charge against her but was husband him that she following to his office and told summer when she came poisoning her. suspected her husband of say charges improper conduct of it to that defendant’s Suffice “sugar” (which was after the so-called plaintiff and visitors and were denied status) married were unfounded period of the plaintiff and his visitors as well. Tht, supported cor- plaintiff’s charges against defendant were *18 only by reputable witnesses and the cor- roborated and disinterested charges support in of her counter which defendant had roboration beauty by parlor in her chum, Randolph, her Miss who worked were by only placed in mother, part. her then The value to be and and the conflicting peculiarly province on of trial testimony court. Judge

Judge Henry years Presiding County of the Riedel, for Henry County, Freiling, all Court of Marion Carl Sultzman and highly respected of Plannibal of citizens and life three whom were long plaintiff, plaintiff’s of testified on behalf to his acquaintances morality good conduct, good general reputation for and five Hannibal, neighbors plaintiff, them of of some of close called citizens by defendant, purpose discrediting plaintiff’s for the of as witnesses say aught against good reputation good reputation, failed when interrogated subject. on that erroneously majority opinion

The concludes while eoncededly “injured” being party, party, an is not an “innocent” basing of innocence on his own admissions that his lack he did call lie, etc., she did and the further fact that her a liar when he was domineering her, niggardly “arrogant miserly towards support, unsympathetic her towards her matter of rights feelings, illness, lacking inconsiderate in the love and affection display sincere for her”. I condemn this by supported it is not testimony, summation because and is an improper an of the improper use and definition word “innocent” un- in this He the facts as shown case. had asked her quit der beauty him, His parlor after she married but she refused. work part himself, mannerisms the man she knew before of' money more her than spend she married him. His failure to he saving disposition did was in his natural to be and his habits line with thrift enabled him practiced which he had all his life and which possessed. to accumulate the All of these char- comfortable estate marriage. Besides, acteristics she knew before the none of these charged against majority opinion appeared prior matters him in the by abstracting to the time she disillusioned him the contracts the tin opened campaign spite box and revenue going property learned that he to turn over his to her. majority opinion, lip paying after service to the rule by that due findings court, deference to the of facts trial where sharply conflicting testimony, is re- should be observed viewing character, proceeds court cases of this then to violate this every rule in particular. essential

A typical case emphasized wherein this is enunciated rule Huffman, Huffman v. 1, 1908, 217 Mo. W. 117 S. decided lane, m which makes controlling opinion. it more than a divisional

In the case, supra, sought Huffman it was and cer- widow tain of the Huffman, age heirs of Jacob F. who died intestate at the seventy-four years, to set aside a deed to a farm himby made sons, days one of his executed six before his death. The trial judge, hearing conflicting testimony after upheld much the deed Supreme and the Court lane affirmed its action course opinion of its following significant made rule, to the reference viz: say

“We do not mean to support that there was no evidence plaintiff’s claim. conflicting, The evidence was but the chancellor who tried the ease opportunity judge better than we have to ought reliance placed testimony to be each wit- ness. He him, had the them, witnesses before them heard and saw under examination cross-examination, experience and it is *19 all triers of the personal appearance fact that the and manner of the witnesses have influence, rightly much so, weighing and in the evi- dence reaching and duty a verdict. It is our under such circumstances to to findings the judge trial the and so we in this case.” do defer of (Italics mine.)

The judge trial peculiar advantage the instant ease a which makes findings his binding reviewing of fact more on a He court. born, reared, taught began practice school and the of law Ralls County, is merely Hannibal, an metropolis environ of the Missouri, northeast shortly and after his accession to the bench he became a city, .and, being by resident of that nature keen an- a alyst possessing and ability a rare separate to the wheat from the chaff, pure gold the dross, finding practically, of facts is reviewing binding court where particularly on and

peculiarly, printed pages. get perusal from a we information read in this case. depositions no of witnesses Besides, there were testified, while observed their demeanor every who witness He saw changing countenances and oc- stand, their watched on the witness reviewing of a vantage is denied to the members cupied point court. vantage superior findings the trial court from such specific form, abbreviated as follows: point I enumerate in a condensed and him, marry or marry That not contract to defendant did him, good loved or had affection for faith or because she design, get marry and to title purpose, him scheme did sole shortly after the possession property; to of his that and not- persons purpose; she such her that told various that sole contracts, she, shortly withstanding antenuptial after the mar- riage began property her implore plaintiff to deed to his home to they lived, property, the Market where also the Grand Avenue and property implore him until about Decem- Street and continued to so signed 1, 1932, shortly disappearance of the and ber after the two acknowledged kept sideboard; tin that contracts from box began neglect plaintiff that to to the about time she to duties and display plaintiff home an and to attitude of viciousness toward and finally to until him and left the home continued do so she deserted day March, 1933; during on the 25th interim she al- such daily plaintiff most absented herself from in the afternoon and un- night, keep til late hours of to the house clean failed and refused order, period and on a number of occasions such failed by to prepare plaintiff refused meals for or to wash dishes used * him, him profane cursed and abused and addressed him with language obsecene applied epithets him; vile names and anger on several spirit occasions she exhibited a and bitterness presence slamming toward him in the of visitors his home doors addressing ugly unbecoming manner; him in an on one falsely stealing money occasion him accused from her and ac- she stealing everything had; cused him of that on or about December 1, 1932, convey plaintiff’s property account of refusal give possession began disregard it, or control of marital kept duties and to treat him with scorn and derision and up indig- until she left the finally home; deserted just nities enumerated were inflicted on without cause or provocation intolerable; that he is the rendered his condition injured party and innocent and has treated her with kindness and faithfully affection and demeaned himself at all times. majority opinion, therein, deem the decision rendered

denying defendant, a divorce from and its failure to court, render findings due trial deference fact made *20 71 case of Court contrary Supreme tbe tbe decision of to be following tbe 1,W. also Huffman, 182, Mo. 117 S. 217 Huffman v. 712; Neville 86, (2d) 3 S. W. l. c. Ramage, 65, 319 Mo. Vining v. Brewer, 491; Kidd v. 64, (2d) S. D’oench, 34, c. 34 W. 327 Mo. l. v. Francisco R. L. & San 960; S. W. St. 1047, 1060, c. 297 317 Mo. l. 18, I therefore 274, 124 S. W. App. Yankee, R. Mo. Co. v. of6 Ar provisions tbe of Section that, request consonance Missouri, of 1884 to tbe Constitution VI, of Amendement ticle tbe to tbe Su certified original transcript therein be this cause and tbe bearing its and determination. preme of Missouri for Court Lacy. (2d) W. 594. 112 S. Matter Verne In Opinion Appeals. filed 1937. Louis Court Nov. St.