Bergman v. Solomon

• Decision Date: 11 May 1911
• Parties: BERGMAN v. SOLOMON.
• Court: Kentucky Court of Appeals

136 S.W. 1010

143 Ky. 581

BERGMAN v. SOLOMON.

Court of Appeals of Kentucky.

May 11, 1911

Appeal from Circuit Court, McCracken County.

Action by Mark Solomon against Max Bergman. Judgment for plaintiff and defendant appeals. Reversed and remanded for new trial.

R. T Lightfoot, for appellant.

M. E Gilbert, for appellee.

HOBSON C.J.

Mark Solomon was married to Henrietta Swope in the year 1905. In May, 1909, they were living with her father and mother, who were keeping a boarding house in Paducah. During that month Max Bergman and Joe Gerstensang began taking their meals at the boarding house. About the 1st of July, Mr. and Mrs. Swope moved their boarding house to another point, and Solomon and his wife remained in the house where they were; Bergman and Gerstensang going with Mr. and Mrs. Swope to the new house. In September, 1909, Mrs. Solomon left her husband, and went to the house of her father and mother. Not long after this she filed a suit against her husband, Mark Solomon, for divorce on the ground of cruelty and gross misconduct on his part. He filed an answer to the petition, in which he denied its allegations and sought the custody of their child. Subsequently the answer was withdrawn and a judgment was entered giving the plaintiff a divorce, the custody of the child, and directing him to pay $10 a month for its support. Some months after this Solomon brought this suit against Max Bergman and Joe Gerstensang, in which he charged that they had willfully and maliciously alienated his wife's affections from him, and thus caused her to leave him, depriving him of her society and love. They filed an answer in which the allegations of the petition were denied. On a trial of the case the court instructed the jury peremptorily to find a verdict in favor of the defendant Gerstensang, but submitted the case to the jury as to Bergman. The jury returned a verdict against Bergman for $3,000. The court granted a new trial. On the second trial of the case the jury again found for the plaintiff, fixing the damages at $1,000. The court entered judgment on the verdict, and the defendant appeals.

It is insisted for the defendant that the court should have instructed the jury peremptorily to find for him. While the evidence is by no means satisfactory, under the scintilla rule which obtains in this state, the case was properly submitted to the jury. Matters of this sort must necessarily be proved largely by circumstantial evidence, and, while much weight may not be given to any one circumstance, it is only when all the circumstances taken together afford no reasonable inference of the fact sought to be established that the court may take the case from the jury.

The defendant offered in evidence the record of the divorce suit. The court refused to allow it to be read, and of this he complains. What Soloman had done in court is competent against him if the same thing done out of court would be competent. He had in that case withdrawn his answer, and admitted the charges which his wife had made against him to be true. This admission may be shown. It may, of course, be explained, but it is a fact to which the jury may give such weight as they think it entitled. His course in that case would also tend to show that he was willing to get rid of his wife, and that his feelings were not so much damaged as he now claims. As to this, too, he may make any explanation that he can; still the facts are competent to be considered by a jury.

When Bergman was on the stand, the counsel for the plaintiff asked him if he had not been indicted for perjury by the grand jury on account of his testimony in the case at the preceding trial. The plaintiff also produced a newspaper published in Paducah in which about three months after the divorce there...