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J. L. Strattout the appellee, recovered judgment against Tennessee Valley Authority, a corporation generally known as TVA, the appellant, for $200 in damages for the loss of a foxhound. TVA moved for an appeal.
As a ground for reversal of the judgment, it is now contended that prejudicial error was committed by the trial court's failure to direct a verdict for TVA.
Stratton, the owner of a blueblooded bitch, a foxhound of the first water, went fox hunting on TVA property on the first Saturday night of May, 1946. In the glory of this chase, the hound fell into an open well and was drowned. The top part of the well had been removed by TVA so that the well was just a hole in the ground, partly obscured by vegetation. No warning sign marked the location of the open well. Although this hound was a good one, she had not been licensed. And Stratton said she fell to her death in the early part of Sunday morning, an illegal time for hunting, the chase having continued through the better part of the entire night as frequently occurs in this pastime. Stratton had been in the habit of hunting over this TVA property, even occasionally going in company with TVA employees. Hunting had not been forbidden and every one knew hunters were perfectly welcome on this property.
[1] As all lawyers realize, three things must be alleged and proven in order to justify submission of an ordinary tort case to a trial jury for its discretionary verdict, viz., (a) damages, (b) negligence, (c) causal connection between the damages and the negligence.
[2] As to the first essential, we are quick to recognize that Stratton proved damages. In the great fraternity of fox hunters, a man's hound is a pearl of considerable price. A common man may freely enjoy without tax or ticket the open air symphony of the melodious harmony of a pack of hounds on a cool, clear night and therein find that life is good if not somewhat glorious. He often recognizes the distinct voice of his own dog and takes pardonable pride in the leadership of that dog running out there ahead of all the rest. He does not need psychic power to know that "Old Queenie" is really leading the whole outfit. The hound that runs the bushytail with enthusiasm is just a little lower in the fox hunter's affections than his children. And although habitual fox hunters toil but little and spin but spasmodically, yet Solomon in his palmiest days never had more of the wealth of real happiness than one of these fox hunters, a wealth to which the hound makes a mighty contribution. Sometimes a man goes fox hunting just for the music, sometimes he goes for surcease from unhappy home life, sometimes he goes in pure pride over the "best dog in the whole country." But under any of these conditions, the hound is worth its price and there is always a ready market for the ugliest flop-ear that ever ran a ridge, provided it has the skill, staying qualities and power to deliver the goods in a real race. Stratton had plenty of damage and we have no doubt that he proved it in a satisfactory way.
As to the second essential, we rather reluctantly meet our duty of saying that Stratton proved no negligence on the part of TVA. This reluctance springs from the fox hunting proclivities of some members of our court. Some of us are also fox hunters.
[3] The law, however, is well established in a case of this kind. Such established law recognizes that an owner of premises owes no duty to licensees except the duty of refraining from any wilful act of injury. Cummings' Admx. v. Paducah Grain & Elevator Co., 190 Ky. 70, 226 S.W. 345. Such established law also recognizes that a licensee must take the property of his license just as he finds it. Bales v. L. & N. R. Co., 179 Ky. 207, 200 S.W. 471.
[4] A license is an "authority of liberty given to do or forbear any act; permission to do something, etc." An invitation, on the other hand, is a "solicitation." See Merriam-Webster Unabridged Dictionary.
[5,6] If Stratton had been an invitee instead of a mere licensee, TVA would have owed him and his hound greater duty, a duty of using ordinary care to keep its premises in safe condition. See Bridgford v. Stewart Dry Goods Co., 191 Ky. 557, 231 S.W. 22. But a person is not considered an invitee, as the term is ordinarily employed, when he is on premises for his own purpose rather than for some purpose beneficial to the owner of such premises. Sage's Admr. v. Creech Coal Co., 194 Ky. 415, 240 S.W. 42.
[7] All evidence on this trial indicates that Stratton was permitted rather than solicited to hunt on TVA property. Likewise, all of such evidence indicates that Stratton's hunting was done for the benefit of himself and his eager hound rather than for that of TVA. Therefore, Stratton and his good hound were licensees, not invitees, on the occasion of this chase. And so, TVA owed them no duty except that of refraining from any act of willful injury against them. And under these circumstances, the trial court should have directed a verdict for TVA.
It is not necessary to consider the third essential of this cause nor the unlicensed condition of Stratton's hound nor the illegality of his Sunday hunting on this occasion.
Wherefore, the motion for an appeal is sustained and the judgment is, for the reason recited, now reversed with directions for further proceedings consistent herewith.
For using these words appellant was convicted and fined $67.50 for having committed a breach of the peace, under a warrant issued by the judge of the Pulaski County court. Appellant appealed to the circuit court, and upon a trial in that forum, the appellant was again found guilty and fined $62.50 and the costs.
"Trifles, light as air,
"Are to the jealous confirmations strong
"As proofs of holy writ."
Regardless of how great is our loss by death, we must never let thoughts of our departed loved ones come between us and life. We owe it to the dead, to the living, to ourselves, to our families and friends, to carry on and not give away to moping or morbid thoughts.
Knowing Judge Fulton intimately for a long number of years and admiring his philosophy and courage as a judge and as a man, it may be appropriate to close these remarks with the words of Tennyson:
"Sunset and evening star,
And one clear call for me!
And may there be no moaning of the bar,
When I put out to sea.
"Twilighted and evening bell,
And after that the dark!
And may there be no sadness or farewell,
When I embark."
In support of her charge of cruel and inhuman treatment, Mrs. Corrigan produced evidence tending to show that her husband had fallen into the habit of staying out most of the night on many nights, staying out the entire night on some occasions, staying away from home in poker games until late in the night or until early in the morning a few times, staying out long hours at night sometimes and then coming home full of beer, whiskey, raw onions or limburger. Her evidence showed that he would often call and say he was coming home and that he would then fail to arrive. And sometimes, as she stated, she would ask him where he had been and he would, by way of reply, only look at her. These were typical elements and instances of Corrigan's cruel treatment of her and they undoubtedly were, if accepted as true, sufficient to support Mrs. Corrigan's claim for divorce.
On the other hand, the former husband related that although he and Mrs. Corrigan got married 12 years ago, yet they never became one flesh. He said, in substance, that she was as cold as an Arctic snowdrift and that the marriage status between them was continually nominal in character rather than actual. He said that her love, if any, for him was always Platonic and that he was never once able to sell to her the idea of the desirability of a coition with him. He pointed to their childless condition as evidence sustaining his assertions. He explained that he continued this sexless marriage because he never quite abandoned his illusion of hope for a happier, more successful, future relationship and also because his religious conviction uncompromisingly denounced any thought of a divorcement of this marriage. He furthermore explained that before he ever understood his legal rights under these circumstances and before he had even mentioned Mrs. Corrigan's unwifely attitude of 12 years' standing to his attorney, he had executed their separation agreement which he says should now be vitiated by the court in this litigation.
By way of rebuttal, Mrs. Corrigan categorically, emphatically and repeatedly denied all of the evidence produced by her husband and his witnesses relating to any unwifely attitude on her part at any time. Their marital adventures began, she said, at the rate of three weekly experiences and continued without termination clear into the month of November preceding their final separation in December. And she also produced her own family physician who has examined her, has found her normal, has found every indication that hers has been an average married woman's sex life.
Thus, both the chancellor and this court have been faced with very conflicting evidence in this case relating to the serious questions at issue. She alleged and sufficiently proved a cause of divorce. He alleged but did not prove his malformation-impotence charge against her, but he did allege and also proved an abandonment charge against her, because this court has held that a renunciation of the true, normal, regular marital relationship by one spouse against the other constitutes an abandonment under the divorce law. See Evans v. Evans, 247 Ky. 1, 56 S. W. 2d 547; McQuinn v. McQuinn, 110 Ky. 321, 328, 61 S. W. 358.
But now the husband wants us, in dealing with this alimony question, to accept his story and to reject hers pertaining to this marriage relationship. To do this would have the effect of confirming as a normal probability the continuation by a husband for more than a decade in a marriage that was never anything but a sort of mockery. And yet, we are bound to realize that a 12 year continuity of such a situation would be contrary to all the natural probabilities. In marriage or even in a mere cohabitation without marriage, conjugal love has a very great cohesive power. Platonic love has none. King Solomon had 700 wives and he "clave unto these in love," but he would certainly have walked out on the whole bunch before breakfast had they renounced normal conjugality with him. Julius Caesar happily cohabited with Cleopatra, but he doubtless would have turned a sour face upon the Egyptian palace in short order had she sent him out to the barn to find a bed. Old man Franklin, Benjamin's father, sired and reared 17 children while living with Mrs. Franklin, but the world might still be groping around in the darkness of an unelectrified age, deprived of all the richness of that kite flyer's great life, had his mother merely lectured on Platonic love to her husband, because Mr. Franklin, under such conditions, would perhaps have caught a fast schooner for Georgia in search of some buxom belle with the sultry emotions of the deep south. Continuity of marriage for 12 years or 2 years or even 1 year without a coition of the parties is so abnormal, unnatural and improbable that we must consider that the chancellor was fully justified in rejecting this husband's evidence that this marriage lasted 12 long years in absolute continence.
Last revised November 9, 1995.
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