DISSENTING OPINION. I regret my inability to concur in either the reasons employed, or the result reached, in the opinion in the instant case which was prepared by our Commissioner Bennick and adopted by my brother judges as the opinion of the court.
The majority opinion contains this erroneous and non-statutory rule in the following language, viz: "In other words, it is a fundamental principle of the law of divorce that before the complaining party is entitled to have a decree in his own favor, it is not enough for him merely to show that he was an injured party, but he must go forward with proof to show that he was also an innocent party as well," and citing cases only from Courts of Appeals.
Other portions of the opinion also contain language showing that the spouse seeking the divorce must show that he or she, as the case may be, is the "innocent and injured party."
Prior to March 12, 1849, the word "innocent" was contained in the statute which relates to divorce proceedings which are notex parte, now Section 1350, Revised Statutes Missouri, 1929 (Mo. Stat. Ann., sec. 1350, p. 1552), but by an amendment which took effect on that date, the word "innocent" was stricken out, leaving the clause reading as follows:
". . . the injured party, for any of the causes above enumerated, may obtain a divorce from the bonds of matrimony." [Laws of Missouri, 1848-1849, p. 49.] (Italics mine.)
This change was noted in Hoffman v. Hoffman, 43 Mo. 547, decided in 1869. No Supreme Court case, which I have been able to find, sanctions this error. The true rule in contested divorce cases is that the party seeking the divorce must come into court with clean hands, and this refers only to matters to be litigated. [Coons v. Coons (Mo. App.), 296 S.W. 358, l.c. 363, and cases there cited.]
For instance, if the husband seeks a divorce from his wife on the ground of adultery and proves his charge, and the wife proves that he also is guilty of a similar offense, he is not entitled to a decree of divorce.
No change was made in what is now section 1358, Revised Statutes Missouri, 1929 (Mo. Stat. Ann., sec. 1358, p. 1573), the clause, then and now, reading as follows:
". . . In all cases where the proceedings shall be ex parte, the court shall, before it grants the divorce, require proof of the good conduct of the petitioner, and be satisfied that he or she is an innocent and injured party." (Italics mine.)
I do not contend that the prevailing spouse in a contested divorce *Page 60 case should not be an innocent as well as an injured party notwithstanding the word "innocent" was dropped from out of the statute as set out hereinbefore. But I do object very strenuously to the unreasonable and far-fetched construction put on the word "innocent" in the majority opinion. But more of that anon.
The majority opinion contains an unwarranted and unsupported appraisal of plaintiff's characteristics and a recital of his alleged bad conduct, which is not supported by the testimony and is even contradicted to a large extent by defendant's own admissions. The opinion states that plaintiff was "arrogant and domineering toward defendant, niggardly and miserly in the matter of her support, unsympathetic toward her during her illness, inconsiderate of her rights and feelings, and lacking in the display of any sincere love or affection for her."
I quote from the record defendant's sworn admissions on this subject, taken from her cross-examination, viz:
"Q. So all the trouble was over signing the second contract? A. Yes, sir, it was, Mr. Henwood. Q. You were married in May? A. Yes, sir. Q. From that on to fall Albert made things warm enough for you there? A. No, we got along fine from May on to fall. Q. When the snow began to come, things got colder, in other ways than the physical temperature of the house, didn't they, didn't things begin to get cold and chilly between you and Albert? A. After the contracts were lost, about the 1st of October. Q. The whole trouble here is over the property and these contracts? A. Yes, sir. Q. He volunteered the second contract? A. Yes, sir. Q. But you wouldn't sign them? A. No, sir, I said if he had give me what he wanted to at first why should he want it changed. Q. Did you ever ask Mr. Hulse why he changed them? A. I was only in Mr. Hulse's office once. Q. Why didn't you go down and say to Mr. Hulse, "What do you mean by changing these contracts on me? A. I said I knowed Mr. Hulse was for Mr. Andris and I was afraid he wouldn't give me justice. Q. That is why you didn't go? A. Yes, sir. Q. Do you think Mr. Hulse changed the contract? A. I don't know, but they were changed. Q. When did he (Albert Andris) discover that the contracts were gone? A. Along the last of October or first of November. Q. You had been married four or five months? A. Yes, sir. Q. He built that home during his married life with the lady referred to as Lizzie? A. He told me that? Q. You had seen that pretty house there that Albert built some twelve, fifteen or eighteen years ago? A. I hadn't really noticed it, to tell you the truth. Q. You had seen it? A. Oh, just outside. Q. It was a nice, attractive little place? A. It is a nice little place, very small though, only four rooms. Q. You found it very comfortable when you first went there? A. It is nice for two. Q. You were willing to take it if Albert gave it to you? A. Sure. *Page 61 Q. You had been driving by that house and putting your car in his garage a year or two before, or two years before you and Albert were married? A. Yes, sir. Q. You didn't have anything against that house did you, it was an attractive place? A. It was a nice place. Q. That house has a lot of fine wood in it, doesn't it? A. Yes, sir. Q. Some cherry, some walnut, all kinds of selected woods, it was a home built to Albert's fancy, and the fancy of his wife, the lady who was his wife at that time, it was a nice comfortable home? A. Yes, sir. Q. And when he didn't include that in the new contract you balked and refused to sign the new contract? A. Yes, sir, I did. Q. And there was trouble from that time on to the end of your stay there in the home? A. Yes, sir. Q. I believe you said in answer to one of Mr. Rendlen's questions that Albert was good to you until he discovered the contracts were missing? A. Yes, sir. Q. He gave you no cause to complain up until that time? A. No, sir."
So that, we must take it that the derogatory statement contained in the opinion and quoted hereinbefore certainly was not justified when considering plaintiff's conduct prior to learning of the disappearance of the two signed antenuptial contracts from the box which was kept locked and kept in the sideboard at the home. It was after the disappearance of these two contracts when the alleged bad conduct of the plaintiff, as claimed in the majority opinion, started. It was the defendant's conduct in secretly removing these contracts which started the war between the two spouses. There was but one key to this box, carried by plaintiff on a ring. Defendant had access to the key. She would be the only person who would profit by taking out the signed and acknowledged contracts. After having importuned plaintiff to deed her the residence property and certain other properties and having failed, it is apparent that she secretly removed the papers from the box.
A studied effort was seemingly made in the majority opinion to throw suspicion on plaintiff's thirty-nine year old daughter by his first marriage by taking these papers from the tin box and also the suggestion that the house at two times was thrown open and drawers of the sideboard and other places in the house had been invaded by some unknown person. The plaintiff's daughter by his first marriage (Mrs. Anna Swartzburg) had no opportunity to tamper with the tin box, because defendant had the only key which would open it, on the ring which he carried in his pocket, and, besides, it would have been against her interest as a prospective beneficiary of her father's estate to have had the contracts removed and destroyed, and the alleged unknown person who entered the house and scattered things around indiscriminately, pulled out drawers, and scattered the contents, left lights burning in the closet and doors unlocked, could furnish no solution in respect to the identity of the person who removed *Page 62 the signed contracts from the tin box because these incidents took place after plaintiff discovered that the papers were missing from the tin box. But the plaintiff rightly attributed these untoward and mysterious occurrences to the meanness of defendant in seeking to bedevil and irritate him.
As soon as plaintiff learned that these papers were gone, he went back to Mr. Hulse's office and the latter, at his request, got the third, unsigned copy, which he had retained for his files and prepared new copies, exact duplicates of the two which had been signed and acknowledged and had disappeared from the tin box. Plaintiff asked her to sign them again. She refused, saying that they had been changed and for that reason she would not sign them. This false and unfounded excuse for not signing the contracts, she kept up until the final separation, thus continuing in keeping up indignities which made her husband's plight unendurable. This was, in substance charging that Mr. Hulse was guilty of unprofessional conduct as a lawyer and of fraud in changing the contracts, and also fraud on the part of her husband in having them changed to her disadvantage.
Ben E. Hulse testified to the preparation of the antenuptial contracts in triplicate at the instance of the plaintiff and to the subsequent appearance of plaintiff and defendant at his office where he read the contract over to them both, then the notary was called in and they both signed and acknowledged two of them and he kept the third, or unsigned one, in his files; that as they were leaving his office defendant said: "It is not worth the paper it is written on."
He also testified that when plaintiff returned to his office after the signed contracts were taken from the tin box, he made additional copies from the one contained in his files and that no change whatever was made in the two he furnished plaintiff.
I have known Mr. Hulse personally and professionally for many years. By reason of that fact, I do not believe a single word of the charge which she makes against him. The trial judge also, to my personal knowledge, has known Mr. Hulse practically as long as I have known him. It is evident that he did not believe her charge.
After plaintiff procured the new copies and after her refusal to sign them, he left them again in the same box, thinking perhaps she would ultimately sign. But, like the first, they mysteriously disappeared. No doubt, her motive was this: that the destruction of the original signed and acknowledged papers and the removal of the new papers which were unsigned, would be very much to her interest in the event her aged husband died, as she could then, in any event, whether he left a will or not, share a widow's part in his estate, which, of course, was better than that provided for her in the marriage contracts. That was clearly her game.
So, we have a situation where, according to her own admissions she had no complaint against plaintiff until he discovered what he *Page 63 rightly deemed her perfidy and deceitfulness in surreptitiously removing the two signed contracts from the tin box; it was then that his alleged bad conduct began. She was the one who opened Pandora's box and let out the pent up evils contained therein. It is well settled law that one spouse cannot create a state of affairs which is harmful to the other spouse and cause marital disagreements and then profit by it.
The majority opinion quotes only some admissions from plaintiff's testimony wherein he acknowledged that he had called her a liar on one or more occasions. It is regarded as somewhat unconventional, at least, for a man to call a woman a liar, but some people might think it would be better, instead of using the short and ugly word, to say, with a polite bow, "Madam, you are very economical with the truth." But, in view of the fact that she had concededly charged him with attempts to poison her, and had charged him with stealing money from her and all of his possessions from others, and had cursed and abused him in the presence of others, and in doing so had used language so vile, so abusive, so vulgar and so obscene and revolting that it seems proper in recounting them to use blanks instead of her foul language, can it be a matter of wonder that he called her a liar? His moderation in choosing language to meet these false, venomous and vulgar charges, clothed in unprintable language, is to be commended.
In ye olden times "when knighthood was in flower" and the female was more of the clinging vine type, probably there was more deference shown to her sex than in these modern times when women have practically equal rights with men and have become competitors with them in business, in politics, in holding jobs in our complex industrial life, and she is held to a stricter accountability than in the times when she was assigned by custom to lead a more sheltered existence.
I can visualize from the testimony adduced something of the personal traits of Albert Andris. He fits the trait which Shakespeare ascribed to Othello, the Moor, "a plain, blunt man", who described his own shortcomings as follows: "Rude am I in my speech, and little blest with the soft phrase of peace." Plaintiff had that admirable German trait of thrift. He believed in saving, and, that trait, coupled with faithful, efficient, honest, hard work at his carpenter's trade, enabled him to accumulate the substantial estate and the property he owned, which defendant schemed, both before and after the marriage, to get title to. He paid his wife's debts in cash and admonished her to run up no bills, that when she wanted money to spend for her needs to come to him and get it in cash, which was another trait not to be despised.
Indeed, it is conceded in the majority opinion, that he paid his wife's doctor bills and "that, therefore, it came with very poor *Page 64 grace from him to complain, as he did, of her failure to have washed windows, scrubbed floors and the like", when he knew of such illness. There is no testimony in the record that he ever complained of her failure to keep the house tidy and clean while she was ill or before she had recovered from her illness. It was at such time after she had taken the contracts from the tin box and refused to sign duplicates, when she was coming in late at night, slamming doors, and insulting his friends who were engaged in playing a social game at cards and showering opprobrious epithets on him that he registered his complaints at her neglect of ordinary household duties.
He is described in the testimony as being a large man and by some as speaking ordinarily in a loud voice and it was sought to be shown by defendant's counsel, but with little success, that he was a profane man and had the reputation for profanity.
But, grant that he was uncouth, that he talked loud, that he used profane language, defendant had known of him all her life. Her father, Frank Glascock, a railroad switchman, had been a friend and an acquaintance of defendant, as stated in the majority opinion, since they were "boys together". Besides, the courtship period having lasted for more than a year, since she first parked her car in his garage and began taking him joyriding and entertaining him frequently in the home of her parents, at dinners, at little parties, where plaintiff always furnished the wine; therefore, she must have been fully aware of all his alleged boorish personal traits and characteristics and his faults and foibles before she "snared" him with the expectation of becoming the owner of his property. At any rate she had no ground for complaint on account of his personal congenital traits.
"Albert", as his intimate friends called him, was guillible and not deeply versed in the "wiles of women"; and so it was not so difficult for the designing defendant, who boasted about being an enchantress of old men, to rope him into this December-May marriage. During the so-called "sugar" period of their married life, that is, the few months which followed the wedding until he discovered the contents of the "tin box" had been rifled and the marriage contracts removed, he lived in a fool's paradise. She openly and ostentatiously fondled over him when in public, called him pet names, whispered "sweet nothings" in his receptive ears, and during social parties at her parents' home, she would frequently and ostentatiously, when flitting around among the guests, pause at Albert's chair and give him a resounding kiss. This pleased Albert and impressed the guests.
But when Albert found the marriage contracts missing from the "tin box" and was confronted with the ugly charge that he and Mr. Hulse had changed them, as a ground for refusing to sign new *Page 65 ones, he was rudely awakened to the stern reality that his hopes of happiness with her were as "baseless as the fabric of a dream".
The majority opinion contains many references to the plaintiff's alleged ill-breeding and his loud talk and bad manners, but fails to disclose any of the profane, vulgar and offensive language which a cloud of witnesses ascribed to the defendant. This testimony, which we will recount, furnishes abundant proof to support the allegation in the petition to the effect that she furthered the marriage for the fraudulent purpose of procuring plaintiff's property. We will cite a few of these statements which do not appear in the majority opinion.
Walter Willingham, aged 41, stated that he had lived in Hannibal for twenty-five years and had worked for the White Star Laundry Company for twenty years soliciting and delivering laundry; that he was well acquainted with the defendant long prior to her marriage to plaintiff; that she was a customer of the laundry at which he worked; that the following conversation occurred shortly before her marriage; that he had heard of the approaching marriage and had said to her: "He is kinda old for you", and that she replied: "Oh, that is all right"; that he said something about "He is too old a man for you", and she said she could take care of him.
Further testifying the witness said that discussing the property where she and her parents then lived she said to him: "I moved out on Grand Avenue", and spoke about the little house up there and said that was her pappy's but the good house was hers and also said, "Just watch me", and patted herself and said, "I will have it all before it is over with".
Mrs. Matthew Herman testified that she was at the home of Mr. and Mrs. Glascock, parents of defendant, at the funeral of Will Ford, brother of Mrs. Glascock; that Mr. Andris said they should have stayed at home and had some of the company at their home for dinner instead of allowing all of them to come to the Glascock home, and that Mrs. Andris had said she wanted to come and help her mother prepare the dinner and he said she hadn't helped her at all, and Mrs. Andris said to him: "You are a God damn liar".
This witness further testified that in another conversation she had with Mrs. Andris after she had left Mr. Andris, she said if Mr. Andris would give her the property on Grand Avenue and the property on Market Street and $500 she would go back and live with him and treat him good.
Henry Franzman, a laborer who had known plaintiff for twenty years or more and had done work for him about his premises, testified that about December following the marriage in May she began to remain away from the home a great deal of the time, nearly every day; that the evening meal was prepared by Mr. Andris and himself; that that was true most of the time; that he remembers when *Page 66 the doors were found open and the lights burning at three o'clock in the afternoon in the bedroom; clothes laying on the floor, on the table, and some across the dresser drawers and found the upstairs door open and the light burning in a large closet and in the attic; that he was also witness to the incident when she slammed the door in March when some friends were with Mr. Andris playing cards; that after she had slammed the door Mr. Andris went in and asked her what was the matter and she said: "You go back and shut your God damned mouth", and that he then came back and they finished the game and all went home. He testified that on another occasion in February at the noon hour at the Andris home, he, Mrs. Andris and Mr. Andris and Mrs. Andris' daughter, about nine or ten years old, were there eating and that Mrs. Andris said to Mr. Andris: "I would like to have some vinegar"; that he went to the basement and brought up some and handed it to her and she pushed it back and said, "I am not going to use that vinegar because you have put poison in it"; that he said, "I haven't done anything of the kind"; that she said, "You are a ____." He said, "To convince you I haven't, I will drink it"; and that he said, "Juanita, you ought to be ashamed of yourself, talking that way before your daughter"; that she said, "That is none of your God damn business"; that is all that occurred there.
Witness further testified that when Albert, as they called plaintiff, asked her about cleaning and straightening up the house that she said, "I am not goin' to clean no dirt for any God damn son of a bitch".
Witness Franzman further testified that in March he heard Mrs. Andris accuse Albert of stealing from her and heard her say: "You have stolen $5.00 from me" and that he said: "I have not," and she said: "You have, it is gone," and that she said: "You are a God damn liar and that is the way all you rich bastards get your money, by stealing it."
John Amon, a witness for plaintiff, testified that he had been acquainted with Albert Andris for about forty-three years, intimately, and well; that he was there with Albert and Newman Knight and Mr. Reeves and Mr. Franzman and remembered the incident when they were playing a social game of cards in the kitchen, about in March, when Mrs. Andris came in about ten or eleven o'clock and went through the house fast, and went into the bathroom and slammed the bathroom door until it shook the wall; that the bathroom was next to the kitchen; that Mr. Andris got up and went in and asked her what was the matter and she said, "Go on and shut your damn mouth and tend to your own business"; that Mr. Andris didn't say nothing and come back and played cards. He also testified that he had been through the house frequently and that he would see dust on the edge of the rugs and on the furniture. *Page 67
Matthew Herman, who lived a close neighbor to the Glascocks (defendant's parents), on Grand Avenue, and, like them, occupied a dwelling owned by plaintiff, testified that in November, 1932, he was at the Andris home washing the storm windows and that Mrs. Andris told him that Mr. Andris had asked her to wash the windows and that "she told him she wouldn't wash windows for no s-o-a-b-". He further testified that he went down to the Andris home in March, 1933, and when he got there Mrs. Andris was talking about some rich fellow that went broke; that a rich fellow in town went broke, that she was glad he went broke, that she hoped all these rich s-o-a-b would get broke; and she said Albert had got a right smart money, said they didn't get their money honestly.
He further testified that he was called to the Glascock home in the latter part of February or first part of March, 1933, by Mr. Glascock to make a fire in the furnace about ten o'clock in the morning and on that occasion Mrs. Andris, who was in the sitting room sick, laying on the davenport, called him in and began to talk about Albert and said, "I didn't marry that Dutch s-o-a-b for love, I married him for his money"; that he heard her make that statement several times.
He further testified as follows: "I was present at the conversation in the Glascock home in the middle of March that my wife testified to. Heard her and my wife talking and she said Mr. Andris wanted her to do the housework and she said she wasn't going to do it. Said she didn't marry that Dutch s-o-a-b for love, she married him for his money. Also said, `When I get tired of a man, I leave him and take his dough and get me another one, and when I get tired of him, I leave him and take his dough and get me another.' I remember taking a note for Juanita down to her husband, Albert Andris. That was about the same time that they was sick. Mrs. Andris called me in the room and asked me to take it. Albert opened the note and read it out loud, said the note asked for two dollars. Handed me $2.00 and I took it and gave it to Mrs. Andris. When I gave it to her, she said, `Is that all he could send me, that old stingy s-o-a-b. There is one sure thing, he has got to pay this doctor bill.'"
James Reeves, a witness for plaintiff, after stating that he was in plaintiff's home at a time shortly before the final separation when Mr. and Mrs. Andris and Henry Franzman were there, in answer to a question as to what he heard about burning a house, said the following:
"As I went into the kitchen Mr. and Mrs. Andris was discussing property, and I heard her make a remark `before I'll see that redheaded whore of a daughter of yours get this house, I will burn it down.'"
It is interesting and illuminating to note that plaintiff specifically and categorically denied every charge of mistreatment leveled against *Page 68 him by the defendant. He denied striking his wife at any time or even threatening to strike her. He denied telling her that she would have to sign the contracts or leave. He denied her charges of poisoning. He drank of the vinegar which she said he had brought for her when she refused it on the charge that he had put poison in it for her. He and others ate of the liver which she claimed had been poisoned by him for her, and to demonstrate that these charges of attempted murder by poison were not the wild vaporings of mere blind rage on her part, for which she might be excused and her conduct to some extent condoned, Dr. Norton, her physician who treated her in January of 1933, covering the time when she claimed Mr. Andris was attempting to poison her, testified that she did not tell him of her charge against her husband at that time, but it was not until the following summer when she came to his office and told him that she suspected her husband of poisoning her.
Suffice it to say that defendant's charges of improper conduct of plaintiff and his visitors (which was after the so-called "sugar" period of the married status) were unfounded and were denied by plaintiff and his visitors as well.
The plaintiff's charges against defendant were supported and corroborated by reputable and disinterested witnesses and the only corroboration which defendant had in support of her counter charges were by her chum, Miss Randolph, who worked in her beauty parlor and by her mother, and then only in part. The value to be placed on the conflicting testimony was peculiarly the province of the trial court.
Judge Henry Riedel, for years Presiding Judge of the County Court of Marion County, Carl Sultzman and Henry Freiling, all three of whom were highly respected citizens of Hannibal and life long acquaintances of plaintiff, testified on plaintiff's behalf to his good general reputation for morality and good conduct, and five citizens of Hannibal, some of them close neighbors of plaintiff, called as witnesses by defendant, for the purpose of discrediting plaintiff's good reputation, failed to say aught against his good reputation when interrogated on that subject.
The majority opinion erroneously concludes that plaintiff, while being concededly an "injured" party, is not an "innocent" party, basing his lack of innocence on his own admissions that he did call her a liar when she did lie, etc., and the further fact that he was "arrogant and domineering towards her, niggardly and miserly in the matter of her support, unsympathetic towards her during her illness, inconsiderate of her rights and feelings, and lacking in the display of any sincere love and affection for her". I condemn this summation because it is not supported by the testimony, and is an improper use and an improper definition of the word "innocent" under the facts as shown in this case. He had asked her to quit the *Page 69 beauty parlor work after she married him, but she refused. His mannerisms were a part of the man himself, which she knew before she married him. His failure to spend more money on her than he did was in line with his natural disposition to be saving and his habits of thrift which he had practiced all his life and which enabled him to accumulate the comfortable estate he possessed. All of these characteristics she knew before the marriage. Besides, none of these matters charged against him in the majority opinion appeared prior to the time she disillusioned him by abstracting the contracts from the tin box and opened her campaign of revenue and spite when she learned that he was not going to turn over his property to her.
The majority opinion, after paying lip service only to the rule that due deference to the findings of facts by the trial court, where there is sharply conflicting testimony, should be observed by the reviewing court in cases of this character, then proceeds to violate this rule in every essential particular.
A typical case wherein this rule is enunciated and emphasized is Huffman v. Huffman, 217 Mo. 182, 117 S.W. 1, decided in 1908,in banc, which makes it more controlling than a divisional opinion.
In the Huffman case, supra, it was sought by the widow and certain of the heirs of Jacob F. Huffman, who died intestate at the age of seventy-four years, to set aside a deed to a farm made by him to one of his sons, executed six days before his death. The trial judge, after hearing much conflicting testimony upheld the deed and the Supreme Court in banc affirmed its action and in the course of its opinion made the following significant reference to the rule, viz:
"We do not mean to say that there was no evidence to support the plaintiff's claim. The evidence was conflicting, but the chancellor who tried the case had a better opportunity than we have to judge of the reliance that ought to be placed in the testimony of each witness. He had the witnesses before him, he heard them and saw them, under examination and cross-examination, and it is the experience of all triers of the fact that the personal appearance and manner of the witnesses have much influence, and rightly so, in weighing the evidence and reaching a verdict. It is our duty under such circumstances to defer tothe findings of the trial judge and so we do in this case." (Italics mine.)
The trial judge in the instant case had a peculiar advantage which makes his findings of fact more binding on a reviewing court. He was born, reared, taught school and began the practice of law in Ralls County, which is merely an environ of Hannibal, the metropolis of northeast Missouri, and shortly after his accession to the bench he became a resident of that city, and, being by nature a keen analyst and possessing a rare ability to separate the wheat from the chaff, the pure gold from the dross, his finding of facts is practically, *Page 70 peculiarly, and particularly binding on a reviewing court where the only information we get is from a perusal of the printed pages. Besides, there were no depositions of witnesses read in this case. He saw every witness who testified, observed their demeanor while on the witness stand, watched their changing countenances and occupied a vantage point which is denied to the members of a reviewing court.
The specific findings of the trial court from such superior vantage point I enumerate in a condensed and abbreviated form, as follows: That defendant did not contract to marry plaintiff, or marry him, in good faith or because she loved or had any affection for him, but did marry him with the sole purpose, scheme and design, to get title to and possession of his property; that shortly after the marriage she told various persons that such was her sole purpose; that notwithstanding the antenuptial contracts, she, shortly after the marriage began to implore plaintiff to deed to her his home property where they lived, also the Grand Avenue property, and the Market Street property and continued to so implore him until about December 1, 1932, shortly after the disappearance of the two signed and acknowledged contracts from the tin box kept in the sideboard; that about that time she began to neglect her duties to plaintiff and to the home and to display an attitude of viciousness toward plaintiff and continued to do so until she finally deserted him and left the home on the 25th day of March, 1933; that during such interim she almost daily absented herself from plaintiff in the afternoon and until late hours of the night, failed and refused to keep the house clean and in order, and on a number of occasions during such period failed and refused to prepare meals for plaintiff or to wash dishes used by him, cursed and abused him and addressed him with profane and obsecene language and applied vile names and epithets to him; that on several occasions she exhibited a spirit of anger and bitterness toward him in the presence of visitors in his home by slamming doors and addressing him in an ugly and unbecoming manner; that on one occasion she falsely accused him of stealing money from her and accused him of stealing everything he had; that on or about December 1, 1932, on account of plaintiff's refusal to convey his property or to give her possession or control of it, she began to disregard her marital duties and to treat him with scorn and derision and kept it up until she finally deserted him and left the home; that the indignities enumerated were inflicted on plaintiff without just cause or provocation and rendered his condition intolerable; that he is the injured and innocent party and has treated her with kindness and affection and faithfully demeaned himself at all times.
I deem the majority opinion, and the decision rendered therein, denying the plaintiff a divorce from defendant, and its failure to render due deference to the findings of fact made by the trial court, *Page 71 to be contrary to the decision of the Supreme Court in the case of Huffman v. Huffman, 217 Mo. 182, 117 S.W. 1, also the following Vining v. Ramage, 319 Mo. 65, l.c. 86, 3 S.W.2d 712; Neville v. D'oench, 327 Mo. 34, l.c. 64, 34 S.W.2d 491; Kidd v. Brewer, 317 Mo. 1047, l.c. 1060, 297 S.W. 960; St. L. San Francisco R.R. Co. v. Yankee, 140 Mo. App. 274, 124 S.W. 18, and I therefore request that, in consonance with the provisions of Section 6 of Article VI, of the Amendement of 1884 to the Constitution of Missouri, this cause and the original transcript therein be certified to the Supreme Court of Missouri for its hearing and determination.