Opinion
No. 7160.
April 9, 1953.
APPEAL FROM THE CIRCUIT COURT, LAWRENCE COUNTY, REX V. McPHERSON, J.
Royle Ellis, Cassville, for appellant.
Charles E. Ginn, Aurora, for respondent.
Action for divorce. Answer and crossbill filed. Reply filed denying the allegations of the cross-bill. Decree for plaintiff and defendant appeals.
The plaintiff sought a divorce on the ground of indignities and cruel treatment which rendered her life as defendant's wife intolerable. She alleged:
"That defendant constantly nagged and quarreled at this plaintiff without just cause; that he beat and choked this plaintiff, and in general conducted himself in a manner unbecoming the husband of this plaintiff."
The indignities alleged in the cross-bill were that the plaintiff quarreled, fussed and nagged at defendant, cursed and abused him, became cold and indifferent and manifested no love or affection for him, and that she wrongfully associated with another man rendering his condition as her husband intolerable. The reply denied these allegations.
At the time of the filing of the petition, January 17, 1952, the parties had one boy, five years of age and were expecting the birth of another child within two or three weeks. It was born on January 19th. Upon a trial the court rendered a decree for plaintiff, gave her custody of the two children (the second one at the time of the trial being 8 months old), adjudged her alimony in gross in the sum of $500 and $40.00 per month for support and maintenance of the children. From this judgment, defendant has appealed.
Plaintiff's evidence showed that they were married on the 25th day of December, 1945. A final separation occurred on the 12th day of January, 1952. They had been separated at another time, about one year previously, for about three weeks. Her evidence further showed that the defendant was somewhat addicted to drinking intoxicating liquors. At one time he had gone to Monett, became intoxicated, parked his car and had forgotten where it was. He had reported it to the police as stolen. Finally it was found where he had parked it. His father, mother and wife had to go from Aurora to Monett to procure the car and bring him home. At another time, on a coon hunt, he had become very much intoxicated and at still another time in Springfield, he had been arrested and detained at the police station until the next day. When he was drinking, he was very abusive, cursing the plaintiff and nagging her. This abuse, when intoxicated, had extended over quite a long period of time.
He had formed a partnership with Roven Hammond and his brother, Elmer, and they were engaged in operating a chain saw. The three would come to his home for lunch each day and the plaintiff would prepare the meals. The two brothers would drive to defendant's home in their cars in the morning and leave the cars there and all three go to work in defendant's truck. At one time, Roven arrived at plaintiff's home about five minutes before defendant, and was working on the partnership chain saw in the kitchen where defendant had left it. Defendant had been previously working on it at the same place. Plaintiff was also in the kitchen and the five year old son was playing in the middle of an adjoining room in plain view. According to plaintiff's testimony, there was nothing improper at all about the partner being there as he was about the business of the partnership. At that time she was very heavy with child. This was only two weeks before it was born. About a week later, defendant became angry and was very abusive to her, struck her and choked her until she could not breathe and wrongfully accused her of improper association with his partner, Roven. She left him immediately and sued for divorce. The next morning after the kitchen incident, he dissolved the partnership and accused his partner. Roven of breaking up his home. Plaintiff's evidence shows that she was a hard worker, did the washing, ironing, cooking, housekeeping, etc., and had done nothing at all improper. Roven Hammond was a married man with children and his and plaintiff's families had alternated weekly social visits with each other for many months prior to the separation.
The first time plaintiff and defendant separated, she was washing at her mother's house and her husband said he was going down town and would be back at her mother's for supper, at 7:00 or 7:15 p.m. At that time he had not arrived, so she called him at a beer joint. He said he would be out in about an hour, she waited until 9:15 and called again. He told her he wasn't ready to come home and would come home when he got ready. She waited until about 11 o'clock, tried to call and couldn't find him, so she went out in a cab to another beer parlor and dance hall and found him about 11 o'clock. Because of her actions in calling him and coming after him, he struck and beat her and choked her when they returned home. For this offense she left him, but they were re-united after about three weeks. The court sustained an objection to, and struck out, this testimony apparently on the ground that it was condoned. We do not think so. The evidence shows that his quarreling and abuse of plaintiff continued from that time until the final separation. Condonation means forgiveness and pardon after full knowledge of a past wrong, on condition, express or implied, that it will not be repeated. It is a conditional forgiveness and binding plaintiff only when the condition is complied with. Otherwise it was not condoned. Weber v. Weber, 195 Mo.App. 126, 189 S.W. 577; O'Neil v. O'Neil, Mo. App., 264 S.W. 61; Ratcliff v. Ratcliff, 221 S.W. 944, 288 S.W. 794; Needham v. Needham, Mo.App., 299 S.W. 832; Taylor v. Taylor, Mo.App., 224 S.W.2d 412; 27 C.J.S., Divorce, § 62b, p. 616; Dunlap v. Dunlap, Mo.App., 255 S.W.2d 441.
They finally separated on the 12th day of January, 1952. On that afternoon she had been down town and was waiting for him on the street where he had arranged to meet her, and his ex-partner, Roven, was standing at the same place talking to another woman. Plaintiff spoke to her husband's ex-partner. Defendant at that time came along in his truck and saw her but she got in the truck and went home with him. That night, in a fit of jealousy over his ex-partner, he struck and choked his wife until she could hardly breathe and was falling to her knees. He then grabbed her and twisted her arm. About a week before the final separation, defendant became enraged about his wife buying some Christmas presents for their son, threatened her with a gun because of that and his jealousy over Roven. He had sat all night with a loaded gun across his lap and kept her awake. He not only accused her of having an affair with this man but included several others in his accusations. About a year before the separation and long before the formation of the partnership, Roven while intoxicated, in passing her house had stopped, met her as she was returning from the brooder houses, entered into a conversation with plaintiff and tried to make a date with her. She became angry, refused his offer and he left. She thought he was so drunk he didn't comprehend what he was saying She told her husband about this.
The defendant's evidence showed that while he was engaged in operating the partnership chain saw, he came to his home one afternoon and his partner, Roven Hammond, was in the kitchen, sitting on the kitchen cabinet and his wife was leaning up against his partner's leg. At another time, he had been coming down the street in Aurora, in his truck and saw his wife on a street corner, talking to his ex-partner. When his wife was in the hospital, at the birth of the second child, Roven was seen coming down the corridor in the hospital. At another time he testified that while driving down the street, he had seen his wife and Roven at 2:30 in the afternoon in the City of Aurora, parked behind the A. I. G. Grocery Store, in the back seat of a green Ford car, apparently making love to each other. He also offered two other witnesses, Mr. and Mrs. Cline, his cousin and her husband, as to the incident, but these two witnesses later went to plaintiff and apologized for telling that they had seen her in the car with her husband's ex-partner, and according to plaintiff, acknowledged that they were mistaken in who her companion was. At another time, defendant claimed he saw Roven taking his wife home in his car late at night.
In rebuttal, plaintiff offered evidence that while she was in an automobile behind the A. I. G. Store in question, she was not in the back seat as defendant's evidence showed, but was in a car with her brother-in-law and they had stopped there to get some groceries. That later Mr. Cline came to her and apologized and said he didn't recognize the person in the car with her. He couldn't see his face. Whoever it was had blonde hair. The evidence shows her brother-in-law was blonde. The car was a green Ford and the testimony showed her brother-in-law had a green Ford of that description. Roven Hammond as a witness, denied ever owning a green Ford, ever being behind the grocery store in company of plaintiff, and while he admitted that he had been at the hospital, he testified that he had been there to see his niece who was in the hospital at the time and that he did not know plaintiff was there or that her child was born on the day he was at the hospital. He denied any improper relations with plaintiff but admitted that one time, while drunk, he did try to make a date with her, that she angrily refused and he never mentioned it again.
Appellant seems to take the position that the evidence of occasional drunken sprees are not admissible or to be considered because the Statute, section 452.010, V.A.M.S., states, as one of the grounds of divorce, that the offending spouse "shall have been addicted to habitual drunkenness for the space of one year; * * *." The evidence does not show habital drunkenness within the statutory definition, nor was there any attempt to do so. One is an habitual drunkard who has a fixed and irresistible habit of drunkenness, having by frequent indulgence lost the power to control his appetite but it is not necessary that he be continually drunk or that his drunkenness incapacitate him for a work; a man may be an habitual drunkard and yet be sober for days and even weeks at a time. Tarrant v. Tarrant, 156 Mo.App. 725, 137 S.W. 56; Jackson County ex rel. Farley v. Schmid, 141 Mo.App. 229, 124 S.W. 1074; Wallace v. Wallace, Mo.App., 194 S.W. 523; Lester v. Sampson, Mo.App., 180 S.W. 419. The evidence fails to show that he had acquired an uncontrollable appetite for intoxicants.
But the evidence did show that he was frequently drinking and at intervals drunk, perhaps not within the poetical definition of drunkenness,
"He is not drunk who from the floor
Can rise again and drink once more.
But he is drunk who prostrate lies
And cannot either drink or rise."
But while drunk or drinking, the evidence shows, he became quarrelsome, cruel and irascible and proof of this condition was admissible, not to prove he was an habitual drunkard, but as explaining the apparent cause for sometimes offering indignities.
The testimony shows that plaintiff and defendant owned two parcels of land, one three acres, one forty acres. They still owed on the forty acres the sum of $4,000 and it had cost $5,250. The three acres had been given them by his parents, and they had improved it by building brooder houses on it. At the time of the trial, it was worth approximately $7,000. The real estate was held as tenants by the entirety. In addition he owned a truck worth $1,800, on which there was owing, covered by a mortgage, $927.29. He had been a member of the armed services and while such had suffered an injury whereby he had lost three fingers, but this injury did not occur in combat, but while he was alone on a hunting expedition when he was at home on furlough. For this injury, he was receiving $92.50 per month from the government.
Cases of this character are heard de novo on appeal and upon the record and when there is irreconcilable conflict in the testimony great deference should be shown the decision of the trial court because of the advantage it has in being able to see and hear the witnesses when they are testifying. Politte v. politte, Mo.App., 230 S.W.2d 142; Pipkin v. Pipkin, Mo.App., 255 S.W.2d 66; Dunlap v. Dunlap, Mo.App., 255 S.W.2d 441.
We think the evidence preponderates in favor of the plaintiff and that the trial court was justified in giving her a divorce. Consequently, under the facts here, she was entitled to alimony and an allowance of $500 in gross does not indicate an abuse of discretion by the trial court. She has two young children to care for and support and certainly $40 per month is not an exorbitant allowance for the husband to pay for their support. Judgment of the trial court is affirmed.
BLAIR and McDOWELL, JJ., concur.