Summary
In Pointer v. Pointer, 251 S.W.2d 334 (Mo.App. 1952) the court held that failure to call such a witness gives rise to a logical inference that their testimony would be damaging rather than favorable.
Summary of this case from State v. DavisOpinion
No. 28371.
September 16, 1952.
APPEAL FROM THE CIRCUIT COURT, ST. LOUIS COUNTY, FRED E. MUELLER, J.
Allen H. Whittington, St. Louis, for appellant.
Arnold J. Willmann, John A. Nolan, Clayton, for respondent.
This is an action for divorce wherein plaintiff was awarded a decree, with alimony in the sum of five dollars per month. The defendant, who sought no affirmative relief, prosecutes this appeal.
The petition alleged that the defendant nagged and quarreled with the plaintiff and that he cursed and threatened her. It is further alleged that on several occasions he beat her and threatened to kill her.
The defendant's answer denied any misconduct on his part and alleged that the plaintiff was cold and indifferent toward him. The answer further charged that the plaintiff cursed and abused him and at one time threw boiling water upon him. It is also averred by the defendant that the plaintiff told the defendant she was going to make him do something to her so that she could get a divorce.
The parties were married in 1927 and lived together until 1949, when the plaintiff left and filed suit for a divorce. After seven weeks of separation they became reconciled and the suit was dismissed. Somewhat less than a year later this action was brought. The only evidence presented was the testimony of the plaintiff and defendant.
It appears that throughout their married life the plaintiff had always been considerate of the needs of her husband. He worked long and irregular hours as a landscape gardener and she frequently got up at three o'clock in the morning to prepare his breakfast. She did her housekeeping and laundry and they lived in their own home which the defendant had built in 1941.
Their troubles seem to have started in 1946, according to plaintiff, who said that defendant then became complaining and no longer took her to church or places of amusement. Prior to that time they had attended card parties, baseball games, and church affairs. She said that the defendant had not taken her any place since March of 1949, which was the time she dismissed her first divorce suit. However, they attended church and, while he did not take her there because he taught a Sunday School class, he sat with her during the services and they came home together. Defendant admittedly worked very long hours and had but little time for entertainment, but he said that in the summer of 1949 he took his wife to every baseball game between the "Dodgers" and "Cardinals". Neither of the parties were addicted to drink and according to the plaintiff defendant had been intoxicated but twice during their married life and on both occasions she was in the same condition.
There were a number of quarrels between them which increased in frequency until they occurred several times a week. Some of these arguments that they had rose to the point of violence. On one occasion the defendant spanked plaintiff with his hand and struck her on the head with a chair. This culminated in her having him arrested but there was no prosecution resulting from the incident. Apparently the quarrel arose because the plaintiff asked the defendant for some money and he said he had none. The plaintiff looked in his wallet and saw that he had thirteen dollars, after which he grabbed the chair he was sitting on and threw it at her, striking her on the head. She grabbed the chair and he proceeded to spank her on the buttocks with his hand.
On another occasion defendant picked up a large fruit bowl and stood over the plaintiff while she was in bed, threatening to beat her brains out. He told her the same thing was going to happen to her that had happened to Matthew Johnson's wife. It appears that Matthew Johnson had beaten his wife to death. The quarrel ended without any blows being struck.
The next incident occurred when the plaintiff left the part of the house that they lived in and went upstairs to visit a Mrs. Lewis, who apparently rents from them. She said that she went up there to avoid trouble as her husband started quarreling. He followed her and grabbed her by the arm and forced her to come downstairs. He directed her to shut the door and hit her with a small smoking stand. Again he cursed her and called her a liar and a whore.
Defendant and his brother worked together and both had their own automobiles, which they used in their business. Plaintiff on one occasion told the defendant that he was using his automobile too much and that his brother's should be used more frequently. At the time she said this she was in the kitchen and the defendant had in his hand a rolled metal tape measure. He threw this at the plaintiff and missed her and as he retrieved it she picked up a butcher knife to defend herself. He then took the knife from her and threw water on her, after which she threw some hot water on him and he started beating her. He followed her into the bedroom and knocked her down. After he left Mrs. Lewis came down and changed the plaintiff's blouse which had blood upon it. That evening when the defendant returned he told the plaintiff that if she did not give back some money that she had taken he would finish the job and kill her. Plaintiff again had her husband arrested, but the case against him was dismissed. The defendant denied throwing the tape measure at his wife, but said he threw it at the wall in irritation at her interference with his business, and that after he picked it up plaintiff threw scalding water upon him, which gave him a first degree burn. He said he did not knock her down but that she tripped on the rug in the bedroom and fell.
Some time later the plaintiff awoke one night and found her husband standing over her. Whereupon he cursed her and told her to get out of the house or he would come in some night and cut her throat. The defendant's version of this affair is that when his wife awoke he was kneeling by her bed praying for her as he frequently did. Four days after this plaintiff left and instituted this suit for divorce.
The defendant testified that he provided well for the plaintiff and this seems to be established by the evidence. He further stated that the quarrels which took place were always provoked by his wife.
It is asserted that the evidence does not support the finding and decree of the trial court. The first reasons advanced are that the plaintiff had the burden of proving that she was the innocent and injured party and that proof of a single act or a course of conduct into which the defendant was provoked by the plaintiff is not sufficient. Both propositions are sanctioned by past cases decided by this court, for we have frequently held that it is not sufficient to prove injury alone and that the plaintiff must also prove that she is the innocent party. Jones v. Jones, Mo.App., 164 S.W.2d 158; Rusche v. Rusche, Mo.App., 200 S.W.2d 577; Politte v. Politte, Mo.App., 230 S.W.2d 142. And we have held that proof of wranglings and exhibitions of temper due to a lack of conciliatory spirit on the part of both parties, standing alone, is insufficient to support a decree. Haushalter v. Haushalter, Mo.App., 197 S.W.2d 703.
However, we have considerably more than this in the present case, for the plaintiff was repeatedly beaten and her life was threatened a number of times. It is true that she testified that she replied to the defendant's cursing by calling him a damned fool and that the arguments that they had arose, at times, from subjects that she brought up, such as the needed repair of the washing machine, but this does not warrant the assumption that the defendant was justifiably provoked to violence or that his acts were brought about by a lack of control induced by the wrongdoing of the plaintiff.
In order to deny the plaintiff a divorce on the ground that she was not the innocent party, her conduct must have been such as to entitle the defendant to a divorce had he sought it by cross bill. Tebbe v. Tebbe, 223 Mo.App., 1106, 21 S.W.2d 915, Politte v. Politte, Mo.App., 230 S.W.2d 142. The attempted proof of wrongdoing on the part of plaintiff falls far short of this, so the first point must be ruled against the appellant.
The second point urged by the defendant is that a divorce should not be granted on the uncorroborated testimony of a party to the action when other witnesses are available and not produced. The defendant has reference to the fact that plaintiff did not call Mrs. Lewis, who, according to plaintiff's testimony, saw the defendant force plaintiff to go downstairs on one occasion and on another occasion saw blood on the plaintiff's blouse. On that point we stated in Padgett v. Padgett, Mo.App., 231 S.W.2d 207, loc. cit. 215:
"The truth is, however, that there is no inflexible and absolute rule which requires a party's own testimony to have been corroborated as a prerequisite to such party's right to a divorce. Most married couples would naturally be expected, in so far as might be, to avoid airing their domestic difficulties in public, and many serious indignities might well be committed in the privacy of the home where corroboration would usually be impossible. Corroboration serves no other purpose than to add to the weight and credibility of the party's own testimony; and whether testimony shall be believed in the absence of corroboration is a matter reposing largely in the trial court's discretion to be exercised in the light of the circumstances of the case. Stevens v. Stevens, Mo.App., 158 S.W.2d 238; Ridge v. Ridge, Mo.App., 165 S.W.2d 294; Hupp v. Hupp, 238 Mo.App., 964, 194 S.W.2d 215; Lowe v. Lowe, Mo. App., 229 S.W.2d 7; White v. White, Mo.App., 180 S.W.2d 229; Mistler v. Mistler, Mo.App., 202 S.W.2d 513."
Since such testimony would but have added weight to the plaintiff's own testimony on some details relating to two of the many quarrels between the parties, and since the court apparently believed the testimony of plaintiff, it was not essential to a decree for her that Mrs. Lewis should be called as a witness.
The last contention presented by the appeal is that a failure to call available witnesses gives rise to a presumption that, if produced, their testimony would be unfavorable. The defendant again has reference to the fact that plaintiff did not call Mrs. Lewis to the stand. In support of this proposition, we are cited to two cases, Brodsky v. Brodsky, Mo.App., 233 S.W.2d 829, and Waeckerley v. Colonial Baking Co., 228 Mo. App. 1185, 67 S.W.2d 779. Both of these cases have to do with the failure of a party to call a physician who had treated them, where the nature and extent of their illness or injury was in issue. In these cases it is pointed out that the testimony of the physician was not equally available to both parties, for the claim of privilege could have been asserted by the party treated if the witness had been called by his adversary. In such cases it is held that there arises an inference that the testimony would have been unfavorable to the party who could have produced it or could have consented to its production.
The rule, however, is well established that where a certain witness is equally available to both parties no adverse inference may be drawn from the failure of one of them to call the witness. Huskey v. Metropolitan Life Ins. Co., Mo.App., 94 S.W.2d 1075; In re Thomasson's Estate, 347 Mo. 748, 148 S.W.2d 757. The word "available", as it is used here, is not necessarily restricted to mean that either party has a like opportunity to subpoena the witness, for if the relationship of the witness to a party is such that the witness would reasonably be expected to testify in favor of that party and against the other, such a witness is not equally available. Huskey v. Metropolitan Life Ins. Co., supra. There is nothing to indicate such a relationship between the plaintiff and Mrs. Lewis and since Mrs. Lewis was a tenant of both parties at the time of the trial she may have been reluctant to appear as a witness for either. If she had been called and had testified to the same things related by the plaintiff, her testimony would have been merely corroborative and no unfavorable inference arises upon the nonproduction of a corroborating witness. Roehl v. Ralph, Mo.App., 84 S.W.2d 405, loc. cit. 413; Wilson v. Miss Hulling's Cafeterias, Inc., 360 Mo. 559, 229 S.W.2d 556. Either party could have called her, and we find no basis for an inference that her testimony would have been unfavorable to the plaintiff.
The decree of the trial court is supported by the evidence, and it is the recommendation of the Commissioner that the judgment be affirmed.
The foregoing opinion of WOLFE, C., is adopted as the opinion of the court.
The judgment of the circuit court is accordingly affirmed.
BENNICK, P.J., and ANDERSON, J., concur.
RUDDY, J., absent when case was argued and submitted.