Opinion
No. 27946.
April 17, 1951.
APPEAL FROM THE CIRCUIT COURT, ST. LOUIS COUNTY, AMANDUS BRACKMAN, J.
Robert L. Maul, Edgar G. Boedeker, Clayton, for appellant.
Edwin Rader, Fred A. Gossom and Robert G. Ruhland, of St. Louis, for respondent.
This is an action for divorce brought by Milton Frank, plaintiff, against Hazel Ann Frank, defendant. Upon trial of the cause judgment was rendered for plaintiff, from which judgment defendant has appealed.
The grounds on which plaintiff seeks a divorce are that the defendant, as plaintiff's wife, offered such indignities to plaintiff as to render his condition in life as her husband intolerable. The matters constituting such alleged indignities are fully set out in the petition.
Defendant's answer admits the marriage, that no children were born of the marriage, and the date of final separation as May 29, 1948; but denies that defendant subjected plaintiff to the indignities alleged. The answer further alleges that defendant treated plaintiff with kindness and affection, and performed all her duties as a wife.
The parties became acquainted in the early part of 1940 and were married about two years later, on January 17, 1942, the day before plaintiff entered military service. Plaintiff was in the military service from January 18, 1942, to November 3, 1945, during which time he was stationed at various camps in Missouri, California, and Honolulu. He also served overseas in New Guinea and Luzon. Defendant was employed at the time of the marriage by the American Telephone and Telegraph Company and remained employed during the time her husband was in the military service. In April, 1943, she went to Chicago, Illinois, where she worked for the International News Service until November, 1945, when she returned to St. Louis with plaintiff. The date of the final separation of the parties was May 29, 1948.
After plaintiff was discharged from the army he secured employment as a mail carrier for the Post Office Department. In 1946 his salary amounted to either $3000 or $3100 per year. At that time plaintiff's pay check every two weeks amounted to either $114 or $115. It was plaintiff's practice to cash his pay check and after retaining $15 for his own use he would give the balance to his wife.
Plaintiff testified that defendant would nag and quarrel at him almost continuously; that she was cold and indifferent toward him and submitted him to humiliation and embarrassment. He testified that she did not like his family and did not think he should associate with them; that she referred to his Jewish ancestry by calling them "Jews" and "Sheeneys" and, after he would return from visiting his parents, say that she hated them. He further testified that defendant was always finding fault with him and that sometimes such fault finding would continue all night; that he would want to go to sleep and she would tell him, "You could stay up on nights you go to drill, but you can't stay up and talk to me." Defendant's said remark had reference to plaintiff's activity in the National Guard unit to which he belonged. Plaintiff joined the National Guard around the first part of the year 1947, and was required to attend meetings once a week. Defendant ridiculed plaintiff for joining the National Guard, and would refer to his activity in that regard as, "playing Boy Scout," and would refer to the National Guard as "Boy Scouts." Plaintiff testified that his wife would nag and quarrel at him because he attended these meetings, although plaintiff secured defendant's consent to his joining the National Guard unit. Defendant also expressed doubts that plaintiff did in fact attend the said meetings.
Defendant apparently was not pleased with plaintiff's occupation. Plaintiff's sister testified that on one occasion defendant asked her in plaintiff's presence if she thought it took brains to carry a mail bag around the block. It further appears that defendant urged plaintiff to enroll in night school and learn some trade. Plaintiff did enroll in a course at Rankin Trade School, which required his attendance two nights a week, but after about three weeks defendant complained that plaintiff was spending too many nights away from her. These complaints continued until plaintiff finally quit the trade school, after having attended classes for a little over two months.
After plaintiff's discharge from the army he and his wife lived with plaintiff's parents until July 11, 1946. On that date defendant left and went to her mother's home. When asked the reason for leaving, defendant stated that she had had a quarrel with plaintiff's parents and that she could not get along with them. There was not sufficient room for them to live at her mother's house, and it was difficult for plaintiff to find a place to rent on account of the housing shortage that existed at that time. After considerable effort, however, plaintiff found a place the following December, which he rented. This place was located at 2838-a Wyoming Street in the City of St. Louis. It was a three-room upstairs flat in need of decoration. Plaintiff employed a paper hanger and put on new wallpaper, and himself painted the bathroom and kitchen. He also put in wall sockets and fluorescent lights in the kitchen. After doing all this, defendant complained about the place. She was dissatisfied with the way the rooms were arranged, and thought they should have something more modern. Plaintiff testified that defendant continued to nag and quarrel about the place several times a week, until their final separation.
Plaintiff further testified that while living at 2838-a Wyoming Street defendant refused to allow him to use the living room, and kept the door to the living room closed. He stated that the only reason defendant gave for this was that it conserved fuel. He further stated that during this time defendant would get into one of her quarrelsome moods and sleep by herself on the davinette in the living room. He stated that this happened fifteen or twenty times.
Plaintiff further testified that after moving to the Wyoming Street address he would visit his parents. Defendant objected to these visits, telling plaintiff that his parents were making a fool of him. He stated that defendant would tell him on these occasions that she hated his father and mother.
Plaintiff further testified that defendant would ridicule him about the way he ate and the way he sat at the table.
Ray Burch, plaintiff's brother-in-law, testified that at a dinner party on Thanksgiving Day, 1946, defendant, in the presence of others, ridiculed plaintiff about his manners and the amount he ate, stating that he "ate like a pig." The witness further testified that like criticisms occurred at other times when he was in the company of Mr. and Mrs. Frank, probably six times altogether. Plaintiff's sister, Mrs. Leonore Burch, gave like testimony.
Plaintiff liked to play golf and it was his practice to engage in that sport twice a week during the golfing season. He would play on Saturday and Sunday afternoons. Defendant objected to plaintiff playing golf, contending that he should stay home on those occasions. The final separation resulted from a quarrel with respect to plaintiff's participation in a gold tournament at St. Joseph, Missouri. He stated that when he was preparing to leave for this tournament his wife told him: "If you leave here now, don't ever come back." He further testified that he then advised her, "I am going to go anyway." He testified: "So I started packing my clothes and as I packed them in the suit case she would take them and throw them on the floor and I would put them back in the suit case, and that went on a couple of times and she picked up a screwdriver, which I had been using for home repairs, which had been lying out in the open, and she picked it up in a menacing manner, as if to stab me. I dropped my clothes and took it away from her and in the course of the struggle she bit me on the forearm. * * * Then she turned loose of the screwdriver. I took it away. As a matter of fact, I took it with me to prevent her from using it again, and packed my clothes and left. * * * I went out and spent the night at my mother's, and the next morning I left for St. Joseph."
Plaintiff further testified that defendant would express the opinion that all of his friends were "lowbrows" and were "nobodies"; that he could not visit any of his friends, and his friends, in turn, would not visit them. He stated: "We lived all by ourselves, in a world of ourselves."
Defendant accompanied plaintiff to a gold tournament at Poplar Bluff on one occasion and while there all the contestants were invited to the Country Club there as guests of the members. Plaintiff and defendant attended this affair, but defendant would not mix or associate with the rest of the guests, and sat around with a "long face," saying nothing during the whole time she was there.
After defendant left plaintiff on July 11, 1946, she withdrew $1,143.70 from a joint account with the Postal Credit Union, and $2,200 from an account which the parties had in the Postal Building Loan Association. Plaintiff received none of this money. However, it appears that the funds in both accounts, with the exception of a very small deposit made in each by plaintiff, were deposited by defendant, either from her earnings while plaintiff was in the military service, or from the allotment she received from the government as wife of a member of the armed services.
Plaintiff also complained that defendant used her maiden name at her place of employment while he was in military service. However, a review of the evidence convinces us that this complaint was without merit.
Plaintiff's mother, Mrs. Lillian Frank, gave testimony on behalf of plaintiff concerning the occurrence of July 11, 1946, when defendant left plaintiff and went to live at the home of her mother. The witness stated: "Well, Mr. Frank, we are in the habit of sleeping later in the morning. We were at our breakfast table when she came down. * * * She went into the bathroom and as she came down I always invited her to have a cup of coffee with us. She didn't say anything, she just stared at us. She came in between Mr. Frank and I at the table and she threw down the money and she said: `This is your rent, here is your rent.' I said, `Hazel, what's the matter with you?' * * * She just went off, exploded, she just went into one collection of terrific language after another. * * * She shook her fist into Mr. Frank's face as though she wanted to hit him. * * * She called him a `Goddamn sheeney'. * * * I said, `Listen Hazel, I have lived with Milton's father so many years, I have the first time to hear anything like that,' and before that she had said, `I intend leaving here, I hate all of you,' and I said, `Well, if that's the way you feel, you had better start to go.' she kept talking back and forth with us and as she went out the door, it was part glass or wooden door, and when the door cleared, she pushed her hand through the glass and she then turned around and pushed her hand through it a second time and cut her hand. I never saw her again until today."
Mrs. Lillian Frank further testified that during the nine months that defendant lived at her house defendant was a constant complainer. The witness stated: "Well, in the morning she would come down and I would say, `Did you have a nice sleep?' She would say, `Who could sleep with anything like that snoring going on all the time?' I would say, `Hazel, you must try and remember what he went through.' She would say, `Oh, you feel sorry for your son.' Those were her answers. * * * Most every morning she would have something to complain about. She was never friendly and happy. * * She would always complain about his food, his manners, that he had never been trained. She would tell me that I didn't know how to train children. * * * She didn't complain about the marriage. She did say all the time she was really disappointed with him and that she had been going with another man at the same time she was going with Milton and she could have married either one but she chose Milton, but she was very much disappointed in him."
Plaintiff's father corroborated the testimony given by his wife, Mrs. Lillian Frank, with reference to what transpired when defendant left their house on July 11, 1946.
Defendant took the stand and denied the various accusations made by plaintiff concerning her conduct toward him. Her testimony, and that of her witnesses, if believed, would have warranted a finding that plaintiff failed to show that he was the innocent and injured party.
It is the duty of an appellate court in such cases to review the whole record and reach its own conclusion, and render such judgment as the evidence justly warrants. In doing so we must give due deference to the finding of the trial judge, who had the parties and the witnesses before him and who was in a better position to judge of the credibility of those testifying than is the appellate court. With this rule in mind, we have carefully read and considered the evidence and have reached the conclusion that plaintiff has, by a preponderance of the credible evidence, established facts which prove that he was the innocent and injured party, and entitled to a decree of divorce.
The judgment of the trial court is affirmed.
McCULLEN and BENNICK, JJ., concur.