In this action the plaintiff, Albert Andris, a resident of Hannibal, Missouri, seeks a divorce from his wife, Juanita Andris, and from a decree of the Hannibal Court of Common Pleas awarding him a divorce as prayed, the defendant's appeal to this court has been perfected in the usual course.
Plaintiff lacked but one month of being sixty-four years of age at the time of his marriage to defendant, which occurred on May 21, 1932. He had been married twice before, the first time in 1896, and the second time in 1906. The first marriage endured for a little over a year, and then ended in a divorce which plaintiff obtained from his wife in the courts of Hannibal. The second marriage was terminated by the death of the wife, which occurred in November, 1930.
Plaintiff's only child is a daughter by his first marriage, who is referred to in the evidence as Anna Watson. She is now about thirty-nine years of age, is married, and also resides in Hannibal.
Plaintiff is a carpenter by trade, and has followed his calling, rather successfully it would seem, from the time he was only thirteen or fourteen years of age. As a result of his labors he has accumulated considerable property in Hannibal, consisting of a brick house on Lyon Street, including two garages with rental accommodations for nineteen automobiles; a two-story brick house and a one-story brick house, both situated upon a tract of land two blocks square on Grand Avenue; a carpenter shop on Market Street; and a half interest in a double house, with four rooms to the side, on South Seventh Street. So far as the value of his real estate holdings is concerned, plaintiff estimated that he had invested from $10,000 to $15,000 in the Lyon Street property; he at one time asked $25,000 for his Grand Avenue property; he put the value of the Market Street property at from $1500 to $2000; and he stated that the two houses on South Seventh Street were worth $3000 each in normal times. In addition to this, he testified to his ownership of a note for $1000; 30 shares of stock in Price Theatres, Incorporated, of Hannibal, upon which he had been steadily getting dividends; and some stock of an undetermined value in the Hannibal Trust Company.
Defendant was about thirty years of age at the time of her marriage to plaintiff, and had been married thrice before, once to a man named Walker, and twice to a man named Miller, by whom she had a daughter, Palmeta, who is now about thirteen years of age. Each of defendant's prior marriages had terminated in a divorce obtained in her favor.
Defendant's father is one Frank Glascock, a railroad switchman, with whom plaintiff had been acquainted since they were "boys together." He had of course known defendant all of her life, but because of the great disparity in their ages had had no personal contacts with her until along in 1931 or thereabouts when she began renting garage space from him at his Lyon Street property.
Defendant was the operator of a beauty parlor located at the time on Market Street opposite plaintiff's carpenter shop, and because of municipal parking regulations found it convenient to rent space in one of plaintiff's garages which was located in the rear of his home, only a block or so distant from her place of work. In going to and from the garage defendant would frequently find plaintiff occupied in and about his yard, and in their casual conversations together while he would be assisting her with the doors of the garage he took occasion to complain to her of his loneliness and unhappiness. Then came occasional automobile rides together, followed shortly by plaintiff becoming a more or less frequent visitor at defendant's beauty parlor, with this in turn soon ripening into a courtship to which each party now disclaims the honor of having been the moving spirit, but with the record showing that the marriage license was obtained by plaintiff, whether at defendant's insistence or not, on April 27, 1932, although the marriage was not performed for almost a month thereafter, or until May 21, 1932.
All through the case runs the question stressed by plaintiff of whether defendant married him purely for mercenary motives, and not because of any love or affection for him or interest in his happiness and welfare. Whatever her motives may have been, she unquestionably knew that plaintiff was a man of property, and during the period of the courtship would appear to have made some inquiries at least regarding the extent of his holdings.
The fact is, however, that so far as displaying an interest in subsequent property rights was concerned, plaintiff seems to have given a great deal of attention to the matter on his own part. He admitted that he not only desired to have a marriage contract executed before the marriage, but told defendant that he would not marry her unless she would sign such a contract. He selected his own attorney for the preparation of the instrument, and a week or so before the marriage went alone to the attorney's office and had a contract prepared conforming to his own wishes in the matter, the purport of which was to provide that in the event that defendant should survive him as his widow, then, in lieu of dower, homestead rights, and the like, she should receive a life estate in the Grand Avenue and Market Street properties, and should be paid the sum of $500 in cash out of his estate.
Later plaintiff took defendant with him to his attorney's office where the contract was read to both of them, and after its execution without any objection on defendant's part, duplicate copies were handed over to plaintiff, who took them to his home and placed them in a lock box which he kept in the sideboard and to which he alone had the key. Some months later, when plaintiff had occasion to go to the box on another matter, he found that it had meanwhile been tampered with and that the key to the box was missing off his key
ring. He thereupon unsoldered the lock, and upon opening the box discovered that the two copies of the contract were not among its contents. He then had additional copies prepared from his attorney's file copy and placed these in the unlocked box. Shortly afterwards he had occasion to go to the box again, and found that the additional copies of the contract were likewise missing.
Plaintiff charges defendant with responsibility for the disappearance of the contracts, though he suggests no actual basis for his suspicion other than the fact that she knew that they were in the box and might stand to profit by their disappearance, together with the further fact that a few days before his discovery that the box had been opened defendant had brought his keys to him at the neighborhood fire engine house where he and certain of his cronies were accustomed to loaf during the daytime. In fairness to her it should be stated, however, that she delivered the keys to him openly and without any pretense at concealment, her own testimony in explanation of how she happened to take them to him being that "Mr. Andris had a habit of leaving his keys any place. He would lock the garage door and leave them hanging in the door. I found them laying there one day, they were in the door, and I never thought anything about it, and I went to the fire department and said, `Pappy, here is your keys you left in the garage.'"
Who other than defendant could have had a possible motive for doing away with the contracts or otherwise creating a disturbing situation about the house is left only to surmise and conjecture.
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In this action the plaintiff, Albert Andris, a resident of Hannibal, Missouri, seeks a divorce from his wife, Juanita Andris, and from a decree of the Hannibal Court of Common Pleas awarding him a divorce as prayed, the defendant's appeal to this court has been perfected in the usual course.
Plaintiff lacked but one month of being sixty-four years of age at the time of his marriage to defendant, which occurred on May 21, 1932. He had been married twice before, the first time in 1896, and the second time in 1906. The first marriage endured for a little over a year, and then ended in a divorce which plaintiff obtained from his wife in the courts of Hannibal. The second marriage was terminated by the death of the wife, which occurred in November, 1930.
Plaintiff's only child is a daughter by his first marriage, who is referred to in the evidence as Anna Watson. She is now about thirty-nine years of age, is married, and also resides in Hannibal.
Plaintiff is a carpenter by trade, and has followed his calling, rather successfully it would seem, from the time he was only thirteen or fourteen years of age. As a result of his labors he has accumulated considerable property in Hannibal, consisting of a brick house on Lyon Street, including two garages with rental accommodations for nineteen automobiles; a two-story brick house and a one-story brick house, both situated upon a tract of land two blocks square on Grand Avenue; a carpenter shop on Market Street; and a half interest in a double house, with four rooms to the side, on South Seventh Street. So far as the value of his real estate holdings is concerned, plaintiff estimated that he had invested from $10,000 to $15,000 in the Lyon Street property; he at one time asked $25,000 for his Grand Avenue property; he put the value of the Market Street property at from $1500 to $2000; and he stated that the two houses on South Seventh Street were worth $3000 each in normal times. In addition to this, he testified to his ownership of a note for $1000; 30 shares of stock in Price Theatres, Incorporated, of Hannibal, upon which he had been steadily getting dividends; and some stock of an undetermined value in the Hannibal Trust Company.
Defendant was about thirty years of age at the time of her marriage to plaintiff, and had been married thrice before, once to a man named Walker, and twice to a man named Miller, by whom she had a daughter, Palmeta, who is now about thirteen years of age. Each of defendant's prior marriages had terminated in a divorce obtained in her favor.
Defendant's father is one Frank Glascock, a railroad switchman, with whom plaintiff had been acquainted since they were "boys together." He had of course known defendant all of her life, but because of the great disparity in their ages had had no personal contacts with her until along in 1931 or thereabouts when she began renting garage space from him at his Lyon Street property.
Defendant was the operator of a beauty parlor located at the time on Market Street opposite plaintiff's carpenter shop, and because of municipal parking regulations found it convenient to rent space in one of plaintiff's garages which was located in the rear of his home, only a block or so distant from her place of work. In going to and from the garage defendant would frequently find plaintiff occupied in and about his yard, and in their casual conversations together while he would be assisting her with the doors of the garage he took occasion to complain to her of his loneliness and unhappiness. Then came occasional automobile rides together, followed shortly by plaintiff becoming a more or less frequent visitor at defendant's beauty parlor, with this in turn soon ripening into a courtship to which each party now disclaims the honor of having been the moving spirit, but with the record showing that the marriage license was obtained by plaintiff, whether at defendant's insistence or not, on April 27, 1932, although the marriage was not performed for almost a month thereafter, or until May 21, 1932.
All through the case runs the question stressed by plaintiff of whether defendant married him purely for mercenary motives, and not because of any love or affection for him or interest in his happiness and welfare. Whatever her motives may have been, she unquestionably knew that plaintiff was a man of property, and during the period of the courtship would appear to have made some inquiries at least regarding the extent of his holdings.
The fact is, however, that so far as displaying an interest in subsequent property rights was concerned, plaintiff seems to have given a great deal of attention to the matter on his own part. He admitted that he not only desired to have a marriage contract executed before the marriage, but told defendant that he would not marry her unless she would sign such a contract. He selected his own attorney for the preparation of the instrument, and a week or so before the marriage went alone to the attorney's office and had a contract prepared conforming to his own wishes in the matter, the purport of which was to provide that in the event that defendant should survive him as his widow, then, in lieu of dower, homestead rights, and the like, she should receive a life estate in the Grand Avenue and Market Street properties, and should be paid the sum of $500 in cash out of his estate.
Later plaintiff took defendant with him to his attorney's office where the contract was read to both of them, and after its execution without any objection on defendant's part, duplicate copies were handed over to plaintiff, who took them to his home and placed them in a lock box which he kept in the sideboard and to which he alone had the key. Some months later, when plaintiff had occasion to go to the box on another matter, he found that it had meanwhile been tampered with and that the key to the box was missing off his key
ring. He thereupon unsoldered the lock, and upon opening the box discovered that the two copies of the contract were not among its contents. He then had additional copies prepared from his attorney's file copy and placed these in the unlocked box. Shortly afterwards he had occasion to go to the box again, and found that the additional copies of the contract were likewise missing.
Plaintiff charges defendant with responsibility for the disappearance of the contracts, though he suggests no actual basis for his suspicion other than the fact that she knew that they were in the box and might stand to profit by their disappearance, together with the further fact that a few days before his discovery that the box had been opened defendant had brought his keys to him at the neighborhood fire engine house where he and certain of his cronies were accustomed to loaf during the daytime. In fairness to her it should be stated, however, that she delivered the keys to him openly and without any pretense at concealment, her own testimony in explanation of how she happened to take them to him being that "Mr. Andris had a habit of leaving his keys any place. He would lock the garage door and leave them hanging in the door. I found them laying there one day, they were in the door, and I never thought anything about it, and I went to the fire department and said, `Pappy, here is your keys you left in the garage.'"
Who other than defendant could have had a possible motive for doing away with the contracts or otherwise creating a disturbing situation about the house is left only to surmise and conjecture. It does appear from the evidence that all was not well between plaintiff and his daughter; that she had never visited at his home at any time during the period of his second marriage; and that while she called to see him twice during the period of ten months that he and defendant were living together, it was always at a time when defendant was away from home. As to this he testified that "she wouldn't come when my wife and I were there." There were also a couple of occasions when plaintiff and defendant returned home and found that the house had been entered by some one in their absence and the dresser drawers and the like rifled of their contents. His testimony was that no one but he and defendant had keys to the house, but irrespective of whether any one else was known to have a key or not, or whether any one else may have so resented defendant's presence in the house as to have wished to cause her unhappiness, the fact remains that but little reason exists for pointing the finger of suspicion at defendant herself, at least in the matter of the entry into the house and the disarrangement of its contents.
It was around the first of December, 1932, or about the time of plaintiff's discovery that his lock box had been opened and the copies of the marriage contract abstracted from it, that serious difficulties began to develop between him and defendant. Up until that
time, or for the first five or six months of the marriage, he makes no particular complaint about defendant's conduct or attitude toward him. However from that time on their lives were filled with constant bickerings and wranglings, and finally, on March 25, 1933, defendant left plaintiff and returned to her parents' home, where, in fact, she had already spent considerable of her time after the first of the year during protracted periods of severe illness to which she had been subjected.
In his petition, which was filed on June 17, 1933, plaintiff alleged that throughout the marital period he had faithfully demeaned himself as the husband of defendant and had treated her with kindness and affection at all times, but that he believed, just as defendant herself was alleged to have told various persons, that she did not marry him because of any love or affection for him, or any interest in his happiness or welfare, but only for the purpose of getting possession of his property.
He then alleged the execution of the antenuptial contract and its subsequent disappearance from his lock box, and that from and after the time of his discovery of its disappearance defendant began to neglect her duties to him and their home and to display an attitude of viciousness toward him.
Then followed the charge that throughout said period she absented herself from him and their home almost every day in the afternoon and evening until the late hours of the night; that she failed and refused to keep the home clean and in order, and on numerous occasions failed and refused to prepare meals for him or to wash the dishes used by him; that she cursed and abused him, and addressed him with profane and obscure 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 their home by slamming doors and by addressing him in an ugly and unbecoming manner; that on other occasions when he entered the home he found the outside doors unlocked, and clothing and other articles removed from dresser drawers and scattered over the floor, all of which he believed was done by defendant for the purpose of tormenting him; and that on one occasion defendant accused him of stealing money from her, and on the same day accused him of stealing everything he possessed, although she knew there was no foundation in truth for such an accusation.
Finally he alleged that defendant had subjected him to all of said indignities without cause or provocation on his part, and by said indignities had rendered his condition in life intolerable, in consequence of which he prayed that the bonds of matrimony contracted between him and defendant be dissolved, and that he be granted a decree of divorce.
Defendant's answer, following an admission of the fact of the
marriage, was a general denial of each and every other allegation contained in the petition.
A trial was had upon the issues joined, resulting, as we have already indicated, in the entry of a decree in plaintiff's favor; and now the case is before us on defendant's appeal, with the point made and strenuously insisted upon that plaintiff did not prove himself to be an innocent and injured party, and that his petition should consequently have been dismissed.
So far as concerns the question of whether plaintiff proved himself to be an injured party, if there were nothing more to the case than this the rule of due deference, when applied to the controverted evidence adduced, would undoubtedly warrant us in concluding with the lower court that defendant was at fault in her relations with plaintiff, though not in all the respects and to the full measure charged against her in the petition.
As has already been suggested, the point most stressed by plaintiff throughout the case is that defendant married him purely for mercenary motives, and not because of any love or affection for him or interest in his happiness and welfare. As to this we have no doubt that defendant was prompted by mercenary motives to a greater or less extent in undertaking a marriage to plaintiff, but even so, it must be borne in mind that that fact in and of itself is no ground for divorce under our statute, and is of importance in the case only in so far as it may lend support to plaintiff's version of the controversial facts by disclosing a possible motive for postnuptial indignities allegedly heaped upon him by defendant. Indeed, plaintiff could hardly have expected that a young woman of defendant's age would marry a man so old as he from any spirit of mere romance, and if she was willing to become his wife, with all the responsibilities that such new relationship would entail upon her, then no great blame could have attached to her for having had some regard for her future financial security, provided only that it had nevertheless been her purpose and intent to be dutiful and faithful to plaintiff in conformance with the obligations which her marriage to him required that she assume.
So far as concerns the charge laid in the petition that defendant absented herself from home and refused and neglected to perform her household duties, we think that plaintiff could surely have had no great cause for complaint on that score. Her time away from home was spent at her beauty parlor, as even plaintiff's own evidence disclosed, and while there was some little attempt on plaintiff's part to show that he had requested her to give up the operation of her beauty parlor after her marriage to him, the significant fact is that he never made it possible for her to do so.
Not only was defendant forced to bear most of her own personal expenses after her marriage to plaintiff, but in addition she was faced
with the matter of the support and education of her little daughter, who was only eight years old, and had never received anything toward her maintenance from her father. Plaintiff gave no home to the little girl after his marriage to her mother, but she was left instead to reside with her grandparents, where defendant was compelled to go each day in order to accompany the child to school. She did have lunch each day with her mother, but in no other sense was she a member of the household, and if plaintiff had sincerely desired that defendant have no interests away from home, then in all fairness he should have seen to it that such outside interests were no longer necessary. It may well be true that defendant's housework suffered somewhat at the expense of her beauty parlor, but in view of the difficult and unusual situation with which she was confronted she seems to have done about as well as could have been expected of her under the circumstances.
Indeed there is still a further fact to be considered upon the question of defendant's neglect of her household duties, which is that during much of the period from December to March, of which it is that plaintiff chiefly complains, she was ill and under a doctor's care. As to the truth of this there is but little, if any, dispute in the record. From December 4th to December 28th she was laid up with an attack of influenza, and during the months of January and February she suffered first from an acute inflammation of the bladder, and then from a serious attack of ptomaine poisoning, the effects of which had not yet entirely left her at the time of the trial below. Indeed plaintiff himself paid the doctor's bills covering the treatment that his wife received, and it therefore came with very poor grace from him to complain as he did of defendant's failure to have washed windows, scrubbed floors, and the like over a given period when he knew that she had been ill and confined to her bed at extended intervals throughout that very time.
The credible evidence discloses that it was during the period from December to March that plaintiff began the practice of frequently playing cards at night with certain of his cronies, including one "Koozie" Franzman, a sort of odd-jobs man in the neighborhood, who seems to have spent a great part of his time on the premises. The kitchen was the principal scene of their activities, save that their drinking was done in the basement where plaintiff kept his supply of wine. Plaintiff's evidence was that their conduct on these occasions was quiet and orderly, while defendant's evidence was that all the men, including plaintiff, were loud and boisterous, with their language and general conduct commonly characterized by profanity and vulgarity of the vilest sort.
The charge that defendant exhibited a spirit of anger and bitterness toward plaintiff in the presence of visitors in the home by slamming doors and by addressing him in an ugly and unbecoming
manner is directed to the question of her attitude toward the presence in the house of these associates of plaintiff on three or four nights a week. Defendant admits that on one occasion in the latter part of March she did slam the door as an expression of her disgust at what she says was the vile and degrading conduct of the men in the kitchen, while plaintiff contends, of course, that she had no provocation or excuse for the outburst of ill temper she displayed.
But though there were the extenuating circumstances we have pointed out with respect to many of the specific charges lodged by plaintiff against defendant, there is still no escaping the conclusion that he did make out a strong case against her in support of his charge that she cursed and abused him, addressed him with profane and abusive language, and applied vile names and epithets to him, all inconsistent with any other conclusion than that she bore him no love or affection and had no genuine regard for his personal happiness or welfare. It is quite true that any and all of such conduct was emphatically denied by defendant and her witnesses, but in so far as the facts of the case are in dispute we are constrained to give due deference to the findings of the lower court, which are particularly persuasive in a case of this character where the ultimate result must depend so much upon the question of the credibility of the witnesses. So defendant, regardless of the fact that certain aspects of the case may react in a measure in her favor, is nevertheless to be adjudged a guilty party within the meaning of the law of divorce, which brings us then to the question of what is to be said about the due and proper discharge of plaintiff's own marital obligations toward defendant.
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. [Kistner v. Kistner (Mo. App.), 89 S.W.2d 106; Miles v. Miles (Mo. App.), 54 S.W.2d 741; Libbe v. Libbe, 157 Mo. App. 701, 138 S.W. 685; Schumacher v. Schumacher (Mo. App.), 14 S.W.2d 519; Ellebrecht v. Ellebrecht (Mo. App.), 243 S.W. 209; Coons v. Coons (Mo. App.), 236 S.W. 358.]
As one of his complaints, plaintiff testified: "I requested my wife to wash the windows and scrub the kitchen floor, and other floors. She did not do it. . . . There was no washing of windows or scrubbing of floors during the last five months." This complaint, moreover, despite the fact of plaintiff's wealth, and the undisputed fact that defendant was grievously ill during the greater part of the last five months prior to the separation.
As to the character of his own language toward his wife, plaintiff admitted: "The most I ever said about her, I called her a liar. I don't know how many times I called her a liar, not very many. I didn't put any cuss words with it, when she told me a lie, I told
her she was a liar. . . . I didn't make no business of it. . . . I may have called her a pauper, maybe I did, she ain't got nothing."
In the matter of his support of his wife, plaintiff testified: "I gave her money to buy some clothes between the marriage and the separation, not very much, I don't know exactly. I sent her money twice up to her house, and I gave her money myself when I was up there. . . . I declined to pay for some clothes she bought and consulted Mr. Hulse about paying and he told me to go pay for it and I did. That bill was two or three dollars. It didn't amount to anything but I told her not to buy anything on credit. Whenever she wanted anything, I told her to ask for the money and I would give it to her. That two or three dollars was for some dresses. I gave her some money for Christmas and gave her money when she was sick. She said she was going to get clothing with the money I gave her. There may have been other occasions. She didn't bother me very much for clothes. She wasn't there long enough. When she asked for money for clothes, I gave it to her. I may have given her $20.00 or $30.00 at different times during the ten months we lived together for clothing and support. She didn't bring many clothes there at the time we were married. . . . She liked nice things."
With reference to the habits of plaintiff and his cronies during their congregation in the kitchen on three or four nights a week, plaintiff testified: "When these men were playing cards, I had spittoons around for them to use. We men folks would chew and spit. Mr. Franzman cleaned up the floor. . . . I used tobacco and chewed too and spit tobacco around there. I didn't ask my wife to clean that up. I told you that was what `Koozie' cleaned up."
Franzman, or "Koozie", who was called as a witness for plaintiff, testified: "I understood she was running a beauty parlor . . . and I know she went there to attend to her business of evenings. That is the time when we men would gather in her house and kitchen, and smoke and chew tobacco and play cards. Had spittoons there in the kitchen where we would sit three or four hours at a time spitting, throwing tobacco, cigar and cigarette stubs. We had two spittoons there. . . . That went on three or four times a week there in the house. . . . She would come home from that work about ten or ten-thirty. We men would be draped around her kitchen in that fashion, playing cards, chewing and smoking tobacco."
And not only did plaintiff and his associates litter up the kitchen in unseemly fashion as they themselves disclosed by their own admissions, but they extended their activities into the basement as well, where they would go to drink wine, and, in the absence of a convenient toilet, would make use of a screened drain pipe located
underneath the stairway leading down from the first floor. These were the men, incidentally, who were most critical of defendant's housekeeping, and from whose testimony in that regard we are asked to believe that her lack of cleanliness and orderliness in the home was so pronounced as to have entitled plaintiff to a divorce.
These few extracts from plaintiff's own evidence, which, as a matter of fact, have been taken in considerable part from his own testimony, reveal his true attitude toward defendant in clear and unmistakable fashion. We do not believe that one can read the record in this case without being thoroughly convinced that plaintiff, regardless of any shortcomings on the part of his wife, was himself 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.
Of course we appreciate that plaintiff's own misconduct will not serve to prevent him from being entitled to the status of an innocent party as regards his right to a divorce unless it may be said that his misconduct was of such a nature as to have entitled defendant to a divorce if she had asked for such relief and had herself been an innocent party. [Rankin v. Rankin (Mo. App.), 17 S.W.2d 381; Jones v. Jones, 208 Mo. App. 632, 235 S.W. 481; Wehrenbrecht v. Wehrenbrecht, 200 Mo. App. 452, 207 S.W. 290; Tebbe v. Tebbe, 223 Mo. App. 1106, 21 S.W.2d 915.] However we think that under the facts of the case this rule of law avails plaintiff nothing. Were defendant asking for a divorce from plaintiff, and were she in a position to be held free from any personal blame for the marital difficulties in which the parties find themselves, could it be seriously argued, in the light of plaintiff's own admissions and the implications that unmistakably follow therefrom, that she was not an injured party within the meaning of the law?
In short, we cannot escape the conclusion that regardless of the undoubted basis there is in the case for believing that plaintiff was an injured party, he was nevertheless in no sense an innocent party, and with the record so disclosing, there is no recourse for us but to give effect to our own persuasion in the case, which is that plaintiff, upon the whole record, has not borne his burden of showing himself to be entitled to the relief he asks.
The Commissioner accordingly recommends that the judgment rendered by the Hannibal Court of Common Pleas be reversed and the cause remanded with directions that a new judgment be entered dismissing plaintiff's petition.