
    Henry A. Helbing, Appellant, v. M. C. Helbing, Respondent.
    St. Louis Court of Appeals,
    May 2, 1899.
    Divorce: desertion: justification: cross-bill. No attempt was made to prove the recriminatory matter pleaded in the defendant’s cross-bill. Held, that in the case at bar it must therefore appear by a preponderance of the evidence, that the acts of the defendant, on account of which the plaintiff seeks a divorce, “were the natural or probable result of his own conduct and hence extenuate the defendant’s acts, and reduce the offensive character below the degree which the law requires to justify the separation of the marriage tie” to sustain the trial court in refusing plaintiff a divorce.
    
      Appeal from the Hannibal Common Pleas Court. — Hon, Reuben F. Roy, Judge.
    Reversed and remanded (with directions).
    E. E. Anderson for appellant.
    The permanent change of the domicile of the wife without the consent or knowledge of her husband and without cause, is a desertion within the meaning of our divorce laws. The proof sustains this averment. Deschodt v. Deschodt, 59 Mo. App. 102. The charge of abandonment in this case is admitted by tbe answer of tbe defendant and tbe justification attempted to be pleaded, that in defense of a suit instituted by her, after she bad thus abandoned him, be charged her with adultery, could not avail her in this proceeding, and for this cause tbe trial court should have granted plaintiff a divorce on tbe ground of abandonment. Dwyer v. Dwyer, 26 Mo. App. 647. As to tbe second ground of divorce in plaintiff’s petition, tbe proof was overwhelming. In fact, tbe trial coui't is compelled to admit that be has a good ground for divorce, but refuses to grant it upon a ground totally unsupported by tbe evidence. Neither of tbe counsel in this case were attorneys in tbe former suit. As to what tbe testimony in that case was, is wholly immaterial, as tbe same was not made part of tbe record and tbe court can not take “judicial notice” of it. In tbe absence of evidence to that effect, tbe court can not take judicial notice that tbe case before tbe court bad connection with one formerly decided by it. Banks v. Burnam, 61 Mo. 76:
    No brief filed for respondent.
   BIGGS, J.

This record presents some peculiar features. It is an action of divorce and was begun on tbe twenty-third day of July, 1898. Tbe petition charges that on tbe twentieth day of July, 1897, tbe defendant deserted tbe plaintiff without just cause and has since remained away; that in 189á sbe committed adultery with one Donovan; that sbe also committed adultery with one Berry in 1896; that in July, 1897, sbe committed adultery with Charles Westfall at her place of residence in Draper street in tbe city of Hannibal, and afterward at divers times at her residences on fifth and Chestnut streets in Said city. Tbe petition also charges that in 1897 tbe defendant visited a bouse of prostitution in tbe city of Hannibal and there committed adultery with divers persons who were unknown to plaintiff. There were two children born of tbe marriage, viz., Ernest and Howard, aged respectively twelve and seven years. The plaintiff asked that the custody of the children be awarded to him.

In 1897 the defendant here instituted an action of divorce in the Hannibal court of common pleas. The grounds alleged were various indignities. The husband (the plaintiff here) answered denying the allegations of the petition and by way of cross-bill he charged the same acts of adultery with Charles Westfall on Draper and Fifth streets that he now makes. His answer was filed on the twentieth day of August, 1897. The case was tried at the September term, 1897, and the court dismissed both the petition and cross-bill. In answer-to plaintiff’s petition in the present action the defendant admits that she separated from plaintiff on the twentieth day of July, 1897; that the separation was not with his consent, and-that since she has lived apart from him. In justification of the desertion she pleaded that her husband in his answer in the former suit had falsely accused her of adultery. She also pleaded the proceedings and judgment in the former suit in bar of the charges of adultery in the present action. The answer also contained a cross-bill, the nature of which need not be stated, as the defendant did not attempt to establish its averments. Hpon these pleadings the cause was tried, which resulted in the dismissal of the petition and cross-bill. Omitting the formal parts, the decree reads, and “the court proceeds to hear the evidence adduced, and finds from the evidence and takes judicial notice of the record of this court in the case of Minnie C. Helbing versus Henry A. Helbing, tried at the September term, 1897, of this court; and the court further finds from the evidence that neither the plaintiff nor defendant in this action is entitled to a divorce, and that neither the plaintiff nor the defendant is an injured or innocent party,” etc. From this decree the plaintiff has appealed.

The defendant’s attempted justification of the desertion must fail, for the reason (if no other) that the defendant abandoned. the plaintiff before he filed his answer and cross-bill in the former action. The desertion took place on the twentieth of July, 1897, and the cross-bill was filed a month later, hence on the face of the pleadings this ground of divorce is admitted. We concede that the former judgment as to the falsity of the the alleged acts of adultery with Westfall at the defendant’s residences on Draper and Eifth streets is conclusive against the plaintiff. Evidence of facts concerning these charges was admitted at the last trial as tending merely to characterize or throw light upon the subsequent conduct of the defendant. But the subsequent alleged acts of adultery with Westfall and mentioned in the petition, and the charge that the defendant on several occasions visited a house of assignation, were new matter, and the charges were very satisfactorily established by plaintiff’s evidence. Hence we conclude and hold that these additional grounds of divorce were likewise established. As before stated no attempt was made to prove the recriminatory matter pleaded in the defendant’s cross-bill. Neither did the evidence tend to show any other acts on the part of the plaintiff, which if true, would have entitled the defendant to a divorce had she been innocent. Therefore the judgment of the court refusing the plaintiff a divorce must find support, if at all, in matters of palliation, provocation or mitigation as distinguished from recrimination. That is it must appear by a preponderance of the evidence that the acts of the defendant, on account of which the plaintiff seeks a divorce, “were the nat■ural or probable result of his own conduct and hence extenuate the defendant’s acts and reduce the offensive character below the degree which the law requires to- justify the separation of the marriage tie.” (Owen v. Owen, 48 Mo. App. 208.) We have read the record carefully, and the only scrap of evidence the least detrimental to the character of the plaintiff is to be found in the following extract from his cross-examination, to wit:

“Q. Did you not as a witness on the former trial of this case, when being interrogated concerning the matter, admit that on one or more occasions during your married life, you had contracted a private disease? A. No, sir. Q. Did you not on the former trial of the case, admit that you had contracted gonorrhoea. * * * A. I had something, I don’t ■ know what. The doctor said it didn’t amount to anything. * * * Q. How long was* that before she left you here in Hannibal? A. It was a year or more — yes, two years, I guess. * * * Q. State to the court from whom you contracted the disease of which you speak ? A. Why, I got it from my wife undoubtedly.” What does the foregoing admission prove ? That the plaintiff at one time in his married life was troubled with some disease of the urethra, not of a venereal character, for the physician said it amounted to nothing, and that he contracted the disease from his wife. Can it be said that on account of this the defendant was justified in abandoning plaintiff and in entering on a life of prostitution ? The question needs no answer.

The judgment of the Hannibal court of common pleas will be reversed and the cause remanded, with directions to enter a decree of divorce in plaintiff’s favor and also awarding to him the custody of the two children.

All concur.  