Hostetter v. Green
| Decision Date | 19 June 1914 |
| Citation | 167 S.W. 919,159 Ky. 611 |
| Parties | HOSTETTER ET AL. v. GREEN. [d1] |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Franklin County.
Action by Attilla Green against J. P. Hostetter and others. Judgment for plaintiff, and defendants appeal. Reversed, with of rection to grant a new trial.
Ira Julian, of Frankfort, and M. D. Forman and Forman & Forman all of Lexington, for appellants.
Scott & Hamilton, of Frankfort, for appellee.
In February, 1903, appellee, Attilla Green, was married to Miss Whitney Hostetter, daughter of appellants. The young people lived with the husband's parents on a farm adjoining that of appellants until early in the fall of 1909, when they moved to Alton; but shortly after the removal the wife was stricken with typhoid fever, and it was deemed best that she should be taken to the home of her parents, which was done. While there, differences arose between the husband and her parents which resulted in his leaving; he claiming that he had been forbidden the premises by her father. In February 1910, he instituted an action against the appellants, the parents of his wife, seeking damages for their alleged alienation of his wife's affections. Upon the first trial he was awarded a judgment against them for $1,500, which upon appeal to this court was reversed chiefly for errors in the instructions and the admission of evidence. Hostetter v. Green, 150 Ky. 551, 150 S.W. 652. In October, 1911, appellee's wife instituted an action against him for support and maintenance, in which action he answered and by way of counterclaim asked for an absolute divorce charging abandonment, whereupon she amended her petition and prayed for an absolute divorce upon the same ground, and that alimony be awarded her. The circuit court granted her a divorce, and alimony at the rate of $10 per month. The husband appealed to this court complaining of the allowance of alimony, and the wife prosecuted a cross-appeal because the lower court had refused to allow her a lump sum in full of alimony. This court, having no power to review the judgment of the circuit court granting the divorce, declined to pass upon whether or not it was properly granted, but, upon the question of alimony, considered the evidence and sustained the wife's contention, and directed that a lump sum be allowed her as alimony. Green v. Green, 152 Ky. 486, 153 S.W. 775. It will be observed, however, that this court in passing upon the question of alimony in that case did not undertake to pass upon the merits of the contentions between the parties, but held that, although the wife be partially in fault, yet, if there be equal or some fault upon the part of the husband and no moral delinquency upon the wife's part, she would nevertheless be entitled to alimony if she had no estate or income of her own. Upon the return of this case to the circuit court, it was retried, and the appellee obtained a verdict and judgment against appellants for $2,500 in damages, and from that judgment this appeal is prosecuted.
Four grounds for reversal are relied upon: (1) That the lower court erred in refusing to permit to be filed an amended answer attempting to plead the judgment in the divorce case between appellee and his wife as a bar to this suit for alienation; (2) because the court refused to permit appellant to read in evidence in this case the record and proceedings and judgment in the divorce case; (3) because of the refusal by the lower court to permit appellant to prove by appellee's divorced wife certain things which are shown by avowals in the record; and (4) because the court on the trial refused to instruct the jury in substance that if the offers of appellee's wife to again live with him were made in good faith and refused by him they then should find for the defendant. These questions will be considered in the order named.
In the divorce case each of the parties relied upon the charge of abandonment and sought a divorce upon that ground; and upon the return of this case to the circuit court, after the reversal, the defendants tendered an amended answer setting up, in substance, that the plaintiff in this action had in the divorce case relied upon the same facts to establish his charge of abandonment as he relies upon in this action to establish his charge of alienation, and pleading that in the divorce case this issue had been determined against him and his wife granted a divorce, and that judgment is pleaded in bar of any right to recover in this action. The lower court refused to permit this pleading to be filed, and that action is urged as cause for reversal.
The argument for appellant is that a judgment in a divorce case is a judgment in rem and therefore binding, not only upon the parties thereto, but upon the whole world, and that, inasmuch as the evidence in that case and this was substantially the same, that issue is res judicata as to appellee, and he is precluded from again litigating it. But this contention is not sound; the appellants in this action were not parties to the divorce suit, and in the nature of things could not have been, nor is the wife a party to this suit; the judgment in the divorce suit is binding upon the appellants in this suit only in so far as it fixed the status of the parties to the divorce suit. While the evidence in the two actions may be substantially the same, the pleadings presented essentially different causes of action; in the divorce suit the issue was which party had abandoned the other, while in this suit is involved the issue whether the parents of the wife, prior to the abandonment, were guilty of such conduct and of exercising such influence over their daughter as alienated her affections from the appellee and thereby brought about the abandonment.
It does not follow that, if Green did abandon his wife, the abandonment might not have been forced upon him by reason of the hostility of the Hostetters to him, and their influence over their daughter, coupled with mistreatment of him, might have driven him to abandoning his wife when such abandonment would not have been necessary and would never have taken place except for their mistreatment of him and their conduct in prejudicing their daughter against him. Abandonment of a wife by the husband does not necessarily mean that her...
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