Opinion
No. 21359.
October 2, 1950.
APPEAL FROM THE CIRCUIT COURT, JACKSON COUNTY, JOHN F. COOK, J.
Floyd E. Jacobs, Charles M. Howell, Jr., and Dean Wood, all of Kansas City, for respondent.
Harry L. Jacobs, Robert J. Coleman, Kansas City, for appellant.
Plaintiff and defendant were legally married June 22, 1946, in St. Louis. Plaintiff, the wife, filed this suit for divorce on June 2, 1948. After an extended trial the court found the issues for plaintiff and against defendant, granted her a divorce, (alimony not mentioned) and ordered restoration of her former name, Dudley Mastin Kratz. Defendant appeals.
This was plaintiff's sixth marriage and defendant's first. No children were born of this marriage, but plaintiff has two adopted children.
The petition is based on general indignities, including alleged beatings administered to plaintiff by defendant, upon his alleged attempts, by force and mental coercion, to acquire control of her property and of the trust funds of her two children, upon his unauthorized and excessive spending of her money, and upon his alleged infidelity.
Defendant contends that he is not guilty of any of the charges made by plaintiff; that she is an habitual drunkard and addicted to the excessive use of barbiturates; that as a result of her excessive and continuous use of alcohol and barbiturates her condition, while under such influence, was such as to render his condition in life intolerable; that she is guilty of infidelity; and that, while he does not seek a divorce, her conduct, during their married life, was such as to preclude a finding to the effect that she is an innocent and injured party. In short, he contends that she is not entitled to a decree of divorce because of her own wrong doing. See Jones v. Jones, 208 Mo.App. 632, 235 S.W. 481, 482.
The families of the respective parties are quite wealthy and the case was a hard fought one. Sixty-four typewritten pages were necessary for the transcription of the opening statements of opposing counsel; the testimony of 49 witnesses was taken; 290 exhibits were offered; and the transcript consists of 2275 pages. We will endeavor to make this opinion somewhat less lengthy than is the record, but we cannot make it as brief as we would like.
The parties met 60 days before their marriage, and 2 days after defendant's discharge from war time service in the Air Corps. Defendant knew of plaintiff's previous marriages and stated that it made no difference with him. At the time of their marriage, plaintiff was living at the Gatesworth Hotel, in St. Louis, where they made their home for a time afterward. Defendant was employed by a manufacturing concern in St. Louis, owned by his family, and received a salary of $361.67 per month, later increased to $400. He had owned an interest in the business but had sold it for $40,000 which, he testified, was paid to him during their married life, and which was spent. Plaintiff had an income of about $25,000 per year, less taxes, but was spending far more than her income because she was indebted to her father to the extent of $38,000. Both parties spent lavishly, "every dime that they could get." In connection with plaintiff's charge that defendant compelled her to give him large sums of her money, which he spent, it would be fruitless to try to determine whose money was spent for what, or which of the two spent the most, or the most foolishly. According to defendant's testimony he was "broke" at the time of the trial; and, according to the testimony of plaintiff, more than $58,000 of her money was spent, during the 22 months that they lived together. In addition, plaintiff's father provided them with a $45,000 farm home in St. Louis County, rent free, and furnished additional sums of money.
Nor will we discuss the evidence relating to defendant's alleged infidelity, or her charge that he sought to obtain control of certain trusts wherein her children are beneficiaries. Whether or not evidence offered in support of those charges is convincing, if her charge that defendant administered to her numerous brutal beatings is substantiated in the record, as we think it is, it is not necessary to consider evidence relating to other charges of misconduct, in order to sustain a finding that plaintiff is entitled to a decree of divorce, providing that she herself is free of such misconduct as would bar her from recovering such a decree.
Mrs. Todd, plaintiff's maid while they lived at the Gatesworth Hotel, stated: that about a week after the parties returned from their honeymoon she returned to their rooms from an errand; that plaintiff's face was bruised; that defendant said that he would not have struck her if she had not made him do so; that many times, when she reported for work of a morning, or returned to the apartment from an errand, she would find plaintiff's face bruised, and discolored; that she saw him strike her once; that on one occasion she heard a noise in the kitchen and went in; that plaintiff had been beaten and was crying, had a false tooth knocked out; that such abuse was frequent during her employment in July and August, 1946.
Mrs. Merrill, a colored cook who was employed by the parties at the Gatesworth during the above period, stated that when she would arrive in the morning plaintiff's face was frequently bruised as though beaten; that she saw defendant slapping plaintiff; that he slapped her on another occasion and the witness pleaded with him not to do it; that, once, she picked up from the floor a double handful of plaintiff's hair, after they had scuffled on the floor; that she saw where the hair had been pulled from the back of plaintiff's head.
Plaintiff gave testimony regarding a beating that defendant gave her at Sunny-down Stables, in St. Louis County, during the fall of 1946. She stated that they drove to the stables to feed their dogs; that defendant got out of the car and started toward the stables; that she got out and followed; that he came back, forced her into the back of the car and beat her with his fists. As to this incident defendant testified to the effect that he picked plaintiff up at Busch's, a drinking place; that she was drunk and quarrelsome; that she opened the door and stepped out of the car, was caught by him but that she received severe injuries to her face and head while being dragged on the roadway; that he did put her in the back of the car and, in order to make room for her, he beat a dog to make it get out of the car; that he did not strike plaintiff. However, two fourteen year old girls, of good family, were in the stables, saw the parties drive up, saw plaintiff start to follow defendant to the stables, and saw him put her into the back of the car and strike downward repeatedly with his fists, "with a vengeance." They stated that the dogs had not yet been released, that they saw no dog; and that, a day or so later, they saw these parties at the stables that plaintiff's face was discolored and she wore colored glasses. In answer to a question put to defendant by the court defendant stated that there was no dog in the car when they left Busch's. (Query: When did the dog get into the car?)
Mrs. Hodgins, wife of the headmaster of Kentucky Military Institute, testified that she saw plaintiff, the next day after the above occurrence at Barnes Hospital; that her face was a pulp, red and blue; and that she said, in defendant's presence, that defendant had beaten her; that defendant said a horse had kicked her. Dan Morgan, a friend of defendant testified as to the severity of plaintiff's injuries. Mrs. Merrill stated that when plaintiff and defendant returned to the hotel that plaintiff's face was bruised and puffed; that she had two bruises on her thigh; that defendant stated that she had been kicked by a horse; and that plaintiff stated, in defendant's presence, that he had beaten her.
Plaintiff testified to a beating she received at Phoenix, resulting in the necessity of treatment by a physician. Defendant said that she was drunk on whiskey and barbiturates on that occasion; that he did not beat her.
Plaintiff stated that he beat her at the Bellerive Hotel, in Kansas City, in the spring of 1947; that he knocked her over a table in their room and tore a cartilage in her side so that it had to be taped by a physician. Miss Roach, the daughter of a movie actor, was visiting the Brodskys at that time, they having procured a separate room for her at the hotel. Miss Roach stated that plaintiff called her to her room, at about midnight; that she found her lying on the floor, crying, with an injury in her side; that she took plaintiff to her room where she spent the night; that, the next morning, defendant said he was sorry. Regarding this occurrence, defendant stated that plaintiff got drunk and fell over a table and suffered said injuries.
Some two weeks later, in May, 1947, the Brodskys were staying at the Park Plaza Hotel, in St. Louis. Miss Roach shared the apartment. After a dinner party, attended by them and by another guest, the Brodskys retired to the apartment. Plaintiff testified that when they entered the apartment defendant struck her twice, knocked her down, kicked her in the face, head, and side. Her face was bruised and cut, her mouth cut, a bridge with two false teeth was knocked out, a natural tooth was broken and torn from the gums but did not immediately come out, and a rib was fractured. An X-ray was taken of the fractured rib and a dentist repaired the dental damage. Miss Roach testified to the effect that she walked into the apartment immediately afterward; that plaintiff was lying on the floor, breathing with difficulty; that she protested to defendant and defendant said: "She got what she deserved"; that he refused to call a doctor, or to permit her to use the telephone for that purpose; that she went downstairs, called the police and plaintiff's father; that defendant then sent plaintiff to Jewish Hospital and ordered witness to leave the apartment, which she did.
Mrs. Hodgins testified that she saw plaintiff in hospital and described the severity of her injuries and the extent of her suffering. The X-ray was introduced, and Dr. Schnoebelen testified that he took it and that it revealed a fractured rib. Mrs. Hodgins stated that, at the hospital, in plaintiff's presence, she asked defendant: "What in the world have you done to her?" and that he replied: "Its just one of those things, I got mad."
Regarding this incident, defendant testified that plaintiff became intoxicated at the party and showed attention to a former husband, who came in; that when they retired to the apartment he lay down on a couch while she was in an adjoining room; that he protested her attentions to the former husband, whereupon she struck him with a metal picture frame; that he got up and attempted to take it from her; that, because of her drunken condition, in the struggle, she fell over a table and received the injuries complained of.
The record is replete with evidence regarding these and other beatings, including an incident that plaintiff related when he hit her so hard, on April 4, 1948, that she was deaf for a time in one ear. Defendant denied that he ever, at any time, beat her. Some letters were introduced, written by plaintiff to defendant while she was in Cuba, in the early part of 1948. From them it would appear that plaintiff loved defendant. She never, therein, mentioned defendant's alleged misconduct. From reading them one would not guess that they had ever disagreed. However, she contended at the trial that she tried desperately to make a success of this marriage; and that defendant, always and after every occasion of abuse, would be contrite and promise not to again act in that manner.
While much of the evidence relating to charges of beatings by defendant was adduced in deposition form, yet plaintiff and defendant, and some other witnesses, appeared and testified in person before the trial court. Consequently, we are inclined to defer to his findings regarding the truth of the charges of beating. In doing so, however, we may say that the cold record fully justified a finding to the effect that defendant shamefully and unmercifully beat plaintiff on at least two of the occasions above mentioned; and there is much evidence tending to prove that he abused, beat and otherwise mistreated her during their entire married life. No one who reads this record could reasonably come to any other conclusion.
Defendant contends that if he was guilty of misconduct it has been condoned because plaintiff previously sued for divorce and they, thereafter, effected a complete reconciliation and cohabited; but this contention fails to take into consideration her testimony to the effect that, in order to compel her to sign a check, which check was in evidence and was dated April 4, 1948, he hit her so hard as to cause her to be deaf for a time in her left ear. Condonation implies a condition subsequent, that the forgiving party must, in future, be treated with kindness. Weber v. Weber, 195 Mo.App. 126, 189 S.W. 577; Arnold v. Arnold, Mo.Sup., 222 S.W. 996, 999.
However, it is contended that plaintiff herself was and is an habitual drunkard within the meaning of the statute, and addicted to the excessive use of barbiturates for other than medicinal purposes. There is much testimony by defendant, and by persons who worked in the home of the parties, and as chauffeur, to the effect that plaintiff was continuously drunk for long periods of time, and that she used barbiturates to the extent, and for the purpose, of inducing a condition similar to that of drunkenness; that while in such condition she repeatedly caused defendant great humiliation and embarrassment in public. However, there was equally persuasive testimony from mutual social friends of the parties, and from servants, to the effect that she did not drink except occasionally and moderately; that she did not use barbiturates except occasionally for medicinal purposes; and that she was always well behaved, neatly dressed, a capable housewife, kind and attentive toward defendant.
Defendant stated that he repeatedly found large quantities of "pills" sewed into her clothing, hidden in the beds, and secreted about their rooms; that two Federal drug agents visited their apartment and questioned her about her source of supply and that she told them she might give such information upon her return from a projected trip. Two such agents corroborated defendant's testimony in that regard.
Defendant also contends that she was intoxicated from alcohol, or from drugs, on many occasions when she was treated by various physicians, at times when she claimed to have been beaten by defendant. Plaintiff failed to produce said doctors, or the hospital records; and her attorney repeatedly objected to the production of hospital records, or medical evidence from doctors who had attended her, on the grounds of privilege. It is true, as defendant contends that an inference may be drawn that said witnesses and records, if they had been produced, would not have tended to support her contention that she was not under the influence of alcohol or barbiturates on such occasions. Donet v. Prudential Insurance Company, Mo.App., 23 S.W.2d 1104, 1107; Hancock v. Union Pacific Railroad Company, Mo.App., 231 S.W.2d 225.
One witness a Filipino houseboy, Garcia, in their employ at their farm home, testified to the effect that he had repeatedly seen plaintiff drunk and using pills; that she would awaken him at all hours of the night and ask him to get liquor for her; that he had heard her call a former Negro employee and arrange for him to bring her pills. However, his testimony, at least in part, was flatly contradicted by the testimony of two other employees in whose house he slept while engaged in such employment.
Several other former employees testified to the effect that she drank excessively and used "pills."
Letters and documents were introduced tending to prove that plaintiff's father knew of her alleged addiction to alcohol and pills, and that same had continued for a period of more than ten years; but her father stated that he was induced to believe that to be true, and hence wrote said letters, because of what defendant told him. Statements, signed by plaintiff, to the effect that she was a barbiturate addict and had purchased pills from certain named servants, were introduced in evidence; but plaintiff claimed that defendant forced her to sign such statements.
There was introduced a juvenile court record tending to prove that plaintiff's father had filed a complaint charging that her adopted daughter was a neglected child within the meaning of the statute; that the court had so adjudged because of plaintiff's "cruelty and depravity." Both plaintiff and her father denied anything except general knowledge of the case and claimed that the action was taken to prevent defendant from obtaining or exercising any control over said child, or from being associated with her while plaintiff and defendant were living together; that defendant had sought, on numerous occasions, to compel plaintiff to cause the child's trust fund to be surrendered to his control.
The evidence relating to plaintiff's alleged addiction to alcohol and barbiturates is so conflicting as to be irreconcilable. She could not be the kind of person that many highly respected persons claim that she is, if she conducted herself as defendant, and some of his witnesses, and some documentary evidence, indicated. In such situation we will defer to the judgment of the trial court who heard, saw, and observed both plaintiff and defendant on the stand, and who also saw and heard many other witnesses offered by both parties. The effect of his judgment is to absolve plaintiff of wrong doing in respect to the excessive use of alcohol and barbiturates, as well as in respect to her conduct, as defendant claims, while under the influence thereof.
Defendant also charged plaintiff with adultery. The only evidence in support of said charge is the testimony of Garcia, the above-mentioned houseboy. He stated that he witnessed the act between plaintiff and a uniformed policeman, one night at the farm home. There was no evidence whatever tending to prove that a uniformed policeman was ever at said home on any occasion except one night when plaintiff called the office of the sheriff and asked that an officer be sent out because defendant had beaten her and tore two rings from her finger. Later that night, or in the early morning, defendant brought plaintiff's lawyer to the home where the officer and plaintiff were sitting, each having a highball but in nowise intoxicated. Defendant told the attorney "See! See! what is going on!" took a flash light picture of the scene and left in a taxicab, leaving the lawyer there without transportation. There was strong, well-nigh conclusive, evidence to the effect that Garcia was not on the premises on this occasion. The trial court asked some questions directed to the matter of whether there had ever been a uniformed policeman at the home on any other occasion, and no witness testified to such fact. Consequently, we must hold that defendant wholly failed to prove this charge.
In view of the whole record, and of what we have heretofore said, the judgment should be affirmed.
BOUR, C., concurs.
The foregoing opinion of SPERRY, C., is adopted as the opinion of the court.
The judgment is affirmed.
DEW, P. J., and VANDEVENTER, J. (sitting by order of the Supreme Court) concur.
BROADDUS, J., not sitting.
CAVE, J., not participating.