SLATON V. MILBURN.

(180 Ky. 655)

(Court of Appeals of Kentucky. May 21, 1918.)
1. HUSBAND AND WIFE 333(9)—ALIENA-

TION OF AFFECTIONS-SUFFICIENCY OF EVI-
DENCE.

In a husband's action for alienation of his
wife's affections, evidence held sufficient to au-
thorize the jury's verdict for him.
2. HUSBAND AND WIFE_333(6)

usual ones, it is the law that this character The court properly overruled the motion of damage must be produced by overflows for a new trial, and its judgment is affrom usual and ordinary rains, since the de- firmed. fendant is not required under the law to anticipate and guard against the effects and consequences of unusual and extraordinary rains. L. & N. R. R. Co. v. Conn, 166 Ky. 327, 179 S. W. 195; Id., 179 Ky. 478, 200 S. W. 952, and cases therein referred to. The rule as stated in the first opinion, supra, and adopted by the second one, is that: "It is the well-settled rule in this state that one who constructs a bridge over a stream is liable only in the event that the bridge obstructs the passage of water that accumulates from such ordinary and usual rainfalls in the vicinity as might have been anticipated by persons of ordinary prudence and experience. He is not liable for damages flowing out of overflows which were caused by extraordinary rains or floods, i. e. such floods or rains as are of such unusual occurrence in the vicinity that they could not have been anticipated by persons of ordinary experience and prudence. C., St. L. & N. O. R. Co. v. Hoover, 147 Ky. 37 [143 S. W. 770]; Southern Ry. Co. v. A. M. E. Church's Trustee of Harrodsburg. 121 S. W. 972; Wallingford v. Maysville & B. S. R. Co., 107 S. W. 282 [32 Ky. Law Rep. 1049]."

The rule is necessarily the same when applied to structures producing overflows in other ways than the damming of streams, as was the case from which we have quoted, and the same character of rains to be anticipated by the defendant in the one case must also be anticipated and guarded against in the other, and it necessarily follows that if a rain is so unusual and extraordinary

as to relieve the defendant in the one case from responsibility for the damages produced, the same fact would relieve him in the other case. In the instant case, however, the great preponderance of the testimony shows that the complained-of floods occurred from three to four times each year since the alley was improved. This would seem to indicate that the rainfall producing them may have been extraordinary, but it was by no means unusual, and that an appropriate description of them would be "a usual, extraordinary rainfall." Under the authorities, supra, the law does not relieve the defendant from the consequences of that character of rainfall, for, as said in the last opinion in the Conn Case, supra:

"We then have additional testimony that such rains (as produced the flood complained of) occur every two or three years, and they cannot therefore be considered unusual or unprecedented."

If a rainfall occurring only every two or three years is not such an unusual or extraordinary one as to relieve the defendant from liability for the damages produced, a fortiori would one occurring two or three times a year not be an unusual or extraordinary one so as to relieve him, and there is therefore no room for the contention made in behalf of the city that the verdict is flagrantly against the evidence.

ALIENA

TION OF AFFECTIONS-EVIDENCE. In such action, the court properly instructed that the evidence as to any action of defendant after filing of the petition could only be considered by the jury for the purpose of showing the relation of the parties before the filing of the action, without limiting the evidence to acts of defendant after the separation between husband and wife. 324-ALIENATION

3. HUSBAND AND WIFE

-RECOVERY TO SUE.

A husband, suing for alienation of his wife's affections, had the right to allege and recover for anything occurring up to the time of the filing of the suit.

4. HUSBAND AND WIFE 326-ALIENATION BY HUSBAND.

A husband could recover for alienation of his wife's affections only if defendant had alienated her affections, not if the alienation was brought about by any conduct of the husband.

Appeal from Circuit Court, Breckenridge County.

Suit by Claude Milburn against Cliff Slaton. From judgment for plaintiff, defendant appeals. Affirmed.

David R. Murray and Gus Brown, both of Hardinsburg, for appellant. John P. Haswell, Jr., of Louisville, and D. C. Walls, of Hardinsburg, for appellee.

THOMAS, J. The appellee, Milburn, who was plaintiff below, seeks damages by this suit of the appellant, Slaton, who was defendant below, for the alienation by the defendant of the affections of plaintiff's wife. The answer was a traverse of the averments of the petition, and upon trial the jury returned a verdict for the sum of $500 in favor of plaintiff, upon which judgment was rendered, and to reverse it the defendant prosecutes this appeal.

A number of alleged errors were insisted which is the improper admission and rejecupon in the motion for a new trial, among tion of testimony, but counsel for appellant in their brief say that:

sustained by the court as to the evidence produc"There are many objections overruled and ed. We do not mean to bother the court with these minor questions."

We are disinclined to be less generous to ourselves than is counsel, and will therefore not bother ourselves with those minor questions, especially since the reading of the record fully justifies the course of appellant's counsel, as well as ours.

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203 S.W.-34

buggy and alone.
wife filed suit against the plaintiff for di-
vorce, but the record does not show upon
what grounds. However, the appellant was
very active in developing the testimony in
behalf of the wife in the divorce proceed-

After the separation, the

The two points urged here against the judgment are: (1) That the evidence is insufficient to show that defendant alienated the affections of plaintiff's wife; and (2) that the court erred in one of the instructions which it gave to the jury. A proper determination of the first ground urged necessi-ing, and went with her and attended upon tates a brief review of the testimony.

[1] Plaintiff and his wife were married in 1913, and separated about the 22d day of February, 1916. The ages of the parties are not shown, but it was a second marriage for plaintiff. Up until about the 10th of December, 1915, according to the testimony, the parties lived happily together. About that time plaintiff's wife visited her sister, who lived upon a neighboring farm owned by the defendant. After her return from that visit, according to plaintiff's testimony, her conduct toward him was cold and indifferent; but as to what, if anything, the defendant had to do with bringing about such changed condition the record is silent. About that time, or shortly thereafter, the wife met the defendant at a country store. She was riding horseback; her saddle had slipped in some way; the defendant arranged it for her, and stated: "That looks about like Claude Milburn's fixing." On the second Sunday before the separation the wife again visited her sister's home, which was on defendant's farm and about 100 feet from his residence, and she remained there until the following Wednesday. The defendant met her on the Sunday afternoon of her arrival, and was at her brother-in-law's house, where she was, that night, the next day and night, on Tuesday and Tuesday night, and Wednesday morning, in the afternoon of which day

the wife returned home.

the taking of her depositions. At one time before the filing of this suit, according to one witness, the defendant and plaintiff's wife were together at a schoolhouse at some kind of moving picture show, where they sat together upon the same bench, and during the performance, or at some supposedly appropriate time, the defendant kissed Mrs. Milburn.

Much of this testimony, especially the compromising conduct testified to, is denied by the defendant; but he admits having gone with Mrs. Milburn to a number of the places mentioned by plaintiff's witnesses but attempts in one way and another to justify himself in doing so. There is nothing in the record to show any acts or conduct on the part of plaintiff justifying or authorizing his wife to separate from him, or to show in the least that he was any other than an affectionate husband. Under this state of the record, it can scarcely be insisted that there was not a scintilla of evidence authorizing the submission of the case to the jury, and we are equally convinced that. it cannot be said that the verdict is flagrantly against the evidence. If we confine ourselves exclusively to the developed facts occurring before the separation, it might reasonably be said that the evidence is not as full and complete as to the alienating acts or conduct of the defendant as is sometimes found, and that it is not sufficient to relieve the case of all doubt. But when we consider that testimony, and defendant's conduct after the separation as showing his state of mind toward the wife, and his probable intentions and purposes in being with her frequently and alone, it makes the case eminently proper to be determined by the jury. Indeed, it is in just such cases that the supreme efficiency of the jury system is demonstrated. Looking alone to the record before us, there might be doubts of the propriety of the verdict; but when it is considered that the jury had the witnesses before them, that its members knew the parties and their surroundings and circumstances, it cannot be said, under the rules governing this court on appeal, that the verdict of the jury is not authorized by the evidence.

Rejected evidence offered by the plaintiff showed the details of some of the conversations which occurred between the wife and the defendant upon that visit, but we are not permitted to look to that testimony. However, that which we can consider shows that defendant and the wife were together often on the three days mentioned. On the Monday following the return of the wife to her home she left her husband and returned to the home of that same sister, and it was the defendant's wagon that went after her and moved her small amount of belongings. From that time on for several weeks the defendant was frequently at the house where the wife was staying, and according to the witness Dailey, who was the husband of the wife's sister, the defendant and plaintiff's wife were seen at least one time in a compromising attitude. Other witnesses, along about that time or afterward, and before the filing of this suit, saw them together occasionally and alone, one time in the barn to"The court instructs the jury that the evidence gether, at other times going to places, and as to any acts of defendant after the filing of being together out upon defendant's farm, the petition can only be considered by the when no one was near or within sight. They the parties before the filing of said action, if it jury for the purpose of showing the relation of made a trip to the state of Indiana in a does so show to any extent."

[2, 3] Discussing the second ground relied on, the complained-of instruction is No. 4, which reads:

The criticism of this instruction is that, [ Appeal from Circuit Court, Jefferson Couninstead of the phrase "after the filing of the ty, Common Pleas Branch, Fourth Division.

petition," there should have been inserted (as was done by an offered instruction) "after the separation"; the argument being made that the qualifying effect given to such testimony should have applied to all acts and comduct after the separation. In one aspect of the case this might appear to be true, but it also may have been true that the affections of the wife were not so completely alienated at the time of the separation as to prevent a reconciliation, which might have been prevented and rendered impossible by the defendant's conduct between that time and the filing of the suit, and plaintiff had the right to allege and recover for anything occurring up to the time of the filing of his suit.

[4] Other instructions fully complied with the law in basing the right of recovery exclusively upon defendant being guilty of alienating the wife's affections, and excluding such right if the alienation was brought about by any conduct of the plaintiff.

Upon the entire record, we see no legal reason for disturbing the verdict, and the judgment is therefore affirmed.

(180 Ky. 729)

LOUISVILLE BRIDGE CO. v. IRING.*

(Court of Appeals of Kentucky. May 28, 1918.) 1. DAMAGES 208(2) — INJURIES CAUSE -JURY QUESTION.

In action for personal injuries, whether plaintiff's physical condition was caused by the accident in question held a question for the jury.

2. MUNICIPAL CORPORATIONS 821 (18)
CROSSINGS GATES NEGLIGENCE
QUESTIONS FOR JURY.
Where plaintiff was injured while driving
an automobile by the lowering of a gate arm
at a crossing, whether gatekeeper was negli-
gent held a jury question.

3. TRIAL 199-PROVINCE OF JURY-IN-
STRUCTION-QUESTION OF LAW.

An instruction leaving to the jury the question whether a gateman at a crossing was negligent, without defining his duties in concrete form, was insufficient, as it made the jury the judges of the law as well as the facts. 4. MUNICIPAL CORPORATIONS

CROSSINGS-GATES-LIGHTS.

mm 798

Gates at crossings need have only sufficient lights, either upon the arms or elsewhere, to enable a person, exercising ordinary care for his own safety, to see the arm of the gate. 5. MUNICIPAL CORPORATIONS mm 798

Suit by Ora Iring against the Louisville Bridge Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

James R. Skillman and Helm & Helm, all of Louisville, for appellant. Elmer C. Underwood, of Louisville, for appellee.

CLAY, C. This is a suit by Ora Iring against the Louisville Bridge Company to recover damages for personal injuries. From a verdict and judgment in favor of plaintiff for $2,000, the defendant appeals.

The defendant maintains crossing gates at the intersection of Fourteenth and Market streets in the city of Louisville. The gates

are on the east and west sides of Fourteenth

street, and the arms of the gates, when lowered, extend across Market street. A few minutes before 7 o'clock on the evening of December 7, 1915, plaintiff was driving her. automobile along Market street. When she reached Fourteenth street, the arm of the southwest gate came in contact with the wind shield on the machine, and the arm of the gate was broken off at a point about 20 feet from its base. Plaintiff stepped out of her machine and after taking the names of the witnesses, proceeded to her husband's office at 1213 Main street. Her husband then drove her home, where she was given a hypodermic. A few months later she was operated on for misplaced kidney and uterus, which condition her physicians attributed to the accident. On the other hand, certain physicians, who testified for the company, stated that the misplaced kidney and uterus could not have been caused by the accident.

[1, 2] According to the evidence for plaintiff, the arm of the gate was lowered on the machine, and there was not sufficient light there to enable her to see the descending arm. Her witnesses also testified that they did not hear the sounding of the gong. On the other hand, the evidence for defendant tended to show that the place of the accident was not only well lighted, but that there were lights on each of the arms of the gates. There was further evidence to the effect that the east gates were lowered first, and the gong was then sounded. The gong continued to sound while the west gate was being lowered. The arm of the gate which came in contact with plaintiff's machine was down ~ 803 (1) at the time, and the lantern was thrown into CROSSINGS-GATES-CONTRIBUTORY NEGLI- the air and on the ground. Without giving It is the duty of one approaching a crossing a more detailed statement of the evidence, to exercise ordinary care to discover whether we conclude that there was a sufficient conarms of a gate are down, or are being lowered, flict in the evidence to make it a question for and to keep out of their way, and if a failure the jury whether defendant's negligence was to do so contributed to his injury to such an extent that, but for it, he would not have been the proximate cause of plaintiff's injuries. injured, no recovery could be had. Nor are we prepared to say that the finding

CROSSINGS-GATES-GONG.

It is the duty of a gateman at a crossing to give reasonable warning, by sounding a gong, of his purpose to lower the gate. 6. MUNICIPAL CORPORATIONS

GENCE.

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*Rehearing denied.

of the jury was flagrantly against the evi- | 131 Ky. 351, 115 S. W. 196; Smith v. Cornett, dence.

Appeal from Circuit Court, Jefferson Coun-I ant in its answer had traversed the allegaty, Common Pleas Branch, First Division. Action by the Glenmore Distilleries Company against the Kentucky Distilleries & Warehouse Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Bruce & Bullitt, Wm. Marshall Bullitt. and Keith L. Bullitt, all of Louisville, for appellant. Wm. W. Crawford, of Louisville, for appellee.

CLARKE, J. The appellee, Glenmore Distilleries Company, was plaintiff below, and recovered a judgment of $2,000 against the defendant, now appellant, as damages for breach of a contract to sell and deliver 7,000 empty barrels at $1.05 each.

The single ground urged for a reversal is that plaintiff failed to prove that a Mr. Darlington, with whom its agent, a Mr. Jones, made the contract, was the agent or authorized to make a contract on behalf of the defendant; and, while it must be admitted there is no direct proof of that very essential fact, we think it sufficiently appears from the evidence to warrant the submission of the case to the jury, and to obviate the necessity of a reversal of the judgment against the defendant.

Thomas S. Jones, for the plaintiff, testified that he was engaged in the whisky brokerage business; that he bought and sold empty barrels on commission; that on or before January 21st, he sold barrels for the defendant, and, being asked to "tell how that sale came about," said:

tion in the petition that it had sold the barrels to plaintiff, the real and only issue upon the evidence was whether or not a sale was effected in the conversation between Jones and Darlington, upon which issues the jury found for the plaintiff upon instructions in which it was assumed Darlington was the agent and authorized to act for defendant in the transaction. Whether or not the court was authorized in this assumption and in overruling defendant's motion for a directed verdict depends solely upon whether there was any evidence of Darlington's agency, as there was no denial of it, and we are of the opinion that the testimony of Jones that he made the sale to plaintiff for defendant through Darlington, as above set out, was some evidence of his agency for defendant, which, in the absence of a denial, was sufficient warrant for the court's action in overruling the motion for a peremptory and in submitting the case upon the whole issue of whether or not a sale was effected in the conversation between Jones and Darlington, the evident theory upon which both plaintiff and defendant interrogated the witnesses. Wherefore the judgment is affirmed.

(180 Ky. 704) COFFINBARGER v. COFFINBARGER.

(Court of Appeals of Kentucky. May 24, 1918.) DIVORCE 314-LIMITED DIVORCE-TORTS OF HUSBAND-SUIT BY WIFE.

A wife who has secured a divorce a mensa et thoro may sue her husband for a tort thereafter committed, in view of Ky. St. § 2121, providing that a divorce from bed and board shall operate to property thereafter acquired, and upon the personal rights and legal capacities of the parties, and a divorce from the bonds of matrimony, except that neither shall marry again during the life of the other, and except that it shall not bar curtesy, dower, or distributive right.

"On January 21, 1916, I called up the office of the Glenmore Distillery Company, and Mr. James Thompson gave me an order for between 6,000 and 7,000 barrels freshly empty cooperage packages, and as soon as I obtained the order from him I went to the telephone, and I called up Mr. Darlington, that gentleman sitting right there, and asked him if he had any empty barrels for sale. He told me he had plenty of them. He said, 'How many do you want?' I says, 'I want between 6,000 and 7,000.' He said, 'We have got the barrels.' I said, 'Well, what is your price? He said, "The price is $1.05; you get the five cents commission, and we get the dollar.' That dollar and five cents, the price, was based f. o. b. cars at Louisville. I asked peals. Reversed and remanded. him, 'Could I confirm the same?' and he said, 'Yes; we will fill the orders.' The barrels were to be delivered between that date and June 1, 1916."

Appeal from Circuit Court, Campbell County.

Suit by Minnie Coffinbarger against John Coffinbarger and others. Petition dismissed as to defendant named, and plaintiff ap

Horace W. Root, of Newport, for appellant. A. M. Caldwell, of Newport, for appellee.

For the defendant, Mr. Darlington, its only witness, admitted the conversation with CLAY, C. Minnie Coffinbarger, who had Mr. Jones in reference to the sale about been granted a divorce a mensa et thowhich he had testified, and which Jones stat- ro from her husband, John Coffinbarger, ed was a sale by the defendant to plaintiff, brought this suit against him and others to denying simply that the sale was ever clos- recover damages for false arrest and imed, but he did not deny, nor did the defend-prisonment occurring after the decree of diant attempt to disprove that this sale was for the defendant, as Jones testified it was, nor does counsel for defendant even pretend now that if, in the conversation between Jones and Darlington, the trade was consummated, it was not a sale by the defendant. It will therefore be seen that while defend

vorce had been granted.
vorce had been granted. Her husband's de-
murrer to the petition as amended was sus-
tained on the ground that plaintiff could not
sue him for a tort, and the petition was dis-
missed as to him. Plaintiff appeals.

We have held that under section 2128,
Kentucky Statutes, empowering the wife to

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