Opinion
No. 21440.
May 30, 1951.
APPEAL FROM THE CIRCUIT COURT, JACKSON COUNTY, JOE W. McQUEEN, J.
Holland Maitland, Kansas City, for appellant.
Luther W. Adamson, Kansas City, for respondent.
This is an action for divorce based upon indignities alleged to have rendered plaintiff's condition intolerable. Plaintiff was granted a decree and defendant appeals.
The marriage between the parties took place on March 21, 1946 and a final separation occurred November 5, 1948. Plaintiff was 51 years of age at the date of the trial and defendant 50. Plaintiff had been married before. Two children were born of this previous marriage. One was 27 years of age and the other 29 at the time of the trial. The evidence does not disclose whether or not defendant had been previously married. Plaintiff was a veteran of both World War I and II. At the time of the trial he was a mail clerk in the United States Post Office in Kansas City and had been so employed for a period of over three years.
Without going into detail plaintiff's evidence shows that defendant falsely accused him of infidelity and continuously nagged him; that she kept a knife and at times a razor in her pocket-book and many times threatened to kill him. On one occasion a friend of plaintiff, Albert Bailey, was in plaintiff's home. Plaintiff and Bailey were seated at the kitchen table eating when defendant rushed into the kitchen from the dining room with a butcher knife in her hand and said to plaintiff, "I am going to kill you." Plaintiff, with Bailey's assistance, disarmed her.
Plaintiff also testified that defendant was sullen and rude to his friends when they sought to visit his home, and as a result "they never returned." He also stated that defendant brought stolen property into the home and when he questioned her about it she became angry and said "it was her house and she would do as she pleased."
Plaintiff's son and daughter testified that they talked to defendant and she accused plaintiff of "going with other women"; that she said to them that "she wasn't going to be bothered with him (plaintiff) and she was going to put him out."
Plaintiff further testified that on each payday he gave to defendant all of his wages except $5 or $6; that defendant put the money in the bank in her own name and later stated that plaintiff did not have "a damn nickel, but I have." At the conclusion of his testimony, when asked: "Do you think you could live in peace and harmony as husband and wife," he answered: "No, I would be afraid to."
Defendant testified that plaintiff abandoned her on two occasions. On the first occasion, plaintiff demanded that she have his name placed on her bank account and left because he could not squander her money. On the second occasion, plaintiff came home late at night, under the influence of drink and swearing. Defendant got out of bed, dressed and went out and sat on the porch, thinking she "could see the law pass." When no policeman came by, she went to her sister's home for the remainder of the night and, upon her return home the next morning, plaintiff had gone. Defendant also testified that one night without cause plaintiff struck her in the face and as a result she was unable to work for a week. She stated that she had never asked plaintiff to return and, under the conditions, she could not live with him.
Defendant complains that the trial court erred in receiving in evidence, on behalf of plaintiff, certain testimony not covered by the pleadings. We think the allegations of the petition when liberally construed were broad enough to cover the testimony offered.
Defendant also contends that the court erred in permitting plaintiff to testify to private communications between herself and plaintiff. The transcript disclosed that in most instances the court sustained defendant's objections. It also shows that defendant took plaintiff's deposition and examined him in minute detail concerning the matters she now terms "confidential communications." Whether she is in a position to now complain we need not determine. We say this because applicable here is the rule so well stated in Barton v. Faeth, 193 Mo.App. 402, loc. cit. 410, 186 S.W. 52, loc. cit 55, that: "The same particularity in the admission of evidence is not required at trials before the court as at trials before a jury. The presumption is that in the final determination of the case the court considered only competent and relevant evidence."
And in a divorce case, Pickrel v. Pickrel, Mo.App., 86 S.W.2d 336, the court said, 86 S.W.2d loc. cit. 346: "This being in the nature of an equity case, if there be sufficient admissible evidence to support the judgment, it will not be reversed simply because some inadmissible testimony was given." We rule this contention against defendant.
The only real question before this court is whether the evidence is sufficient to warrant the granting of a divorce to plaintiff. It is our duty, in an action for divorce, to review the case upon both the law and the evidence and reach our own conclusion. However, we are not authorized to set aside the judgment of the trial court "unless clearly erroneous". Civil Code, Mo.R.S.A. § 847.114(d), R.S. 1949, § 510.310.
Plaintiff's evidence, as a whole, was substantial. In some respects it was not uncorroborated. It also appears from the evidence that there is no hope for a reconciliation between the parties. We feel that this case presents a situation where we should defer to the conclusion reached by the trial court. He had the advantage of seeing the witnesses and of observing their demeanor and thus was in a much better position than we are to pass upon their credibility and the weight to be given their testimony.
The judgment is affirmed.
All concur.