McGregor v. McGregor

• Decision Date: 02 February 1909
• Parties: McGREGOR v. McGREGOR.
• Court: Kentucky Court of Appeals

115 S.W. 802

McGREGOR v. McGREGOR.

Court of Appeals of Kentucky.

February 2, 1909

Appeal from Circuit Court, Fleming County.

"Not to be officially reported."

Action by J. M. McGregor against J. F. McGregor. From a judgment for defendant, plaintiff appeals. Affirmed.

J. M McIntire and B. S. Grannis, for appellant.

Jno. P McCartney and J. H. Powers, for appellee.

SETTLE C.J.

Appellant sued appellee in the court below for $5,000 damages claimed to have been caused him by the alleged wrongful and unlawful acts and conduct of the latter in alienating the affections of his wife. Appellee's answer traversed the averments of the petition. Upon the issues thereby made the case went to trial, and at the conclusion of the appellant's evidence the court at appellee's request peremptorily instructed the jury to find for him. This the jury did, and judgment was duly entered in conformity to the verdict. Being dissatisfied with the judgment, and also with the refusal of the lower court to grant him a new trial, appellant by this appeal seeks its reversal. As said by this court in Deitzman v Mullin, 108 Ky. 613, 57 S.W. 248, 50 L. R. A. 808, 94 Am. St. Rep. 390: "The gist of the action is not the loss of assistance, but in the loss of consortium of the wife or husband, under which terms are usually included the person, affection, society, and aid." Or, to more clearly put the matter, the issue to be tried was whether or not the appellee by wrongful acts or conduct caused the separation of appellant and his wife. If there was any evidence which conduced to prove that such was the case, the peremptory instruction should not have been given. It becomes, therefore, necessary for us to consider the evidence furnished by the record, in order that this point may properly be determined.

According to the evidence appellant is 89 years of age and quite childish, and his present wife, who is his second one, is 75 years of age and also childish. The appellee, who is 56 years of age, is the only son of appellant, and was born of his first marriage. The relations between father and son down to the time of the institution of this action had been affectionate, and the relations of the latter with his stepmother from the time of her marriage with his father had been cordial. It appears, however, that appellant and his wife were not happily mated, and that they had frequent disagreements and altercations while they lived together. Much of this seemed to have been caused by the misconduct of Morton Keerans, a grandson of appellant, who made his home with him. On one occasion Keerans had a quarrel with appellant's wife and threw a shovel at her as she fled from the room to escape injury at his hands, and on another occasion she was in bed on account of an alleged assault made upon her, as she claimed, by Keerans with a bucket. According to the testimony of appellant he was present when the grandson threw the bucket at his wife, and made no effort to prevent it; nor did he, as he admitted, then or at any time when his wife and grandson had an altercation, interfere in behalf of the former or rebuke the latter. According to appellant's further admission, his wife repeatedly left his home temporarily after having quarreled with him or his grandson, and he had cursed his wife and been cursed by her. It also appears from the evidence that appellee was at the home of his father on at least two occasions following altercations between appellant, his grandson, and the wife of the former, and that she left the home of appellant in consequence of mistreatment from them, and, further, that upon...