Kempf v. Kempf

Bates, Judge, delivered the opinion of the court. This was a petition for divorce. An amended petition was filed, to which the defendant demurred. The demurrer was not sustained, and judgment given for the defendant, from which judgment the plaintiff appealed to this court. The amended petition stated two causes for divorce. The first was, that at the time of the marriage of the parties “ the defendant was, and still is impotent, in that the mouth of the vagina of the said Margaret was and still is closed, so as to prevent copulation. The second was, that the defendant offered to the plaintiff such indignities as rendered his condition intolerable, “ in this, that the defendant did, in his presence, and in the presence of others, make herself, by the use of whiskey, (which she, without plaintiff’s knowledge, obtained from one Coster,) beastly drunk; and in this, that defendant, in the presence of the plaintiff, as well as in the presence and under the eyes of others, laid down on the ground and urinated upon herself, making, by that means, her clothes wet, and in a most unseemly and unladylike condition.” The objection taken by the demurrer to the first cause of divorce, stated in the petition, was, that it was not alleged that the defect charged was incurable. The statute provides for impotence, as a cause for divorce, in these words, “ when either party, at the time of the contract of marriage, was, and still is impotent.” It does not define what shall constitute impotence; but this case shows such an incapacity as admits of neither copulation nor procreation; and the averment of impotence is in the words of the statute, with the specification of the particular character of the impotence. If the defect be curable, then the defendant is not impotent in the sense of the law, for it is not every temporary or occasional incapacity for copulation which is intended, but permanent and lasting inability. There is then meant by the word impotent, that the defect is incurable ; and the petition having charged that the defendant is impotent, has thereby [214] alleged that the specified defect is incurable. The court therefore erred in sustaining the demurrer. As to the second ground of divorce charged, it is impossible to lay down any rules that will apply to all cases, in determining what indignities are grounds of divorce, because they render the condition of the injured party intolerable. (Hooper v. Hooper, 19 Mo. 357.) In the present case two acts are alleged, both very disgusting, but together failing to show tlujt the plaintiff’s condition is intolerable; that one, or repeated states of drunkenness, would not produce that condition, (as meant by the law,) is evident, from the fact that one ground of divorce given by the same act is “ habitual drunkenness for the space of two years.” Whilst it is not denied that occasional drunkenness (especially of the woman) may form parts of the indignities to the other party which might render his condition intolerable, it cannot be held that one act of drunkenness, accompanied by the other indecency stated, (which resulted probably from drunkenness,) make out a case such as was intended by the law. The second count should be stricken from the petition. Judgment reversed and cause remanded. Judge Bay concurs. Judge Dry den did not sit in the cause, having been of counsel in the court below.