Lapas attēli

Under the statutes of Kentucky the proof of this state of facts entitles a plaintiff to a decree dissolving the bonds of 133 matrimony. The defendant was not served with process in Kentucky nor did she appear in the action.

The decree of divorce was obtained upon the assumption that the defendant was a resident of Kentucky who had been absent therefrom for four months, and could, therefore, receive notice of commencement and pendency of the action by a designated constructive process.

The plaintiff made his formal proofs, and in the absence of the defendant the Kentucky decree was entered about March 14, 1893.

The wife began the present action for a limited divorce on the ground of cruel and inhuman treatment in January, 1893, and the trial court rendered judgment in her favor in June, The husband appeared in this case, was represented by able Kentucky and New York counsel, and the issues were thoroughly tried.

The principal question presented by this appeal is whether the Kentucky decree is a bar to this action, the defendant having set it up in his answer. The plaintiff attacked this decree on the ground that it was entered by a court having no jurisdiction of her person, she being at the time the Kentucky action was begun and the decree therein entered, a resident of the state of New York.

On the other hand, the defendant insisted that his wife was at the time referred to a resident of Kentucky and consequently bound by the decree. This was one of the issues tried and deIcided in favor of the wife.

The learned counsel for the defendant from Kentucky argued with great earnestness and ability that the matrimonial domi cile of the wife is that of her husband, and consequently we are compelled by the constitution of the United States to give full faith and credit to the decree in her husband's favor: Const., art. 4, sec. 1. In view of the fact that we have a finding fixing the wife's domicile in this state, we are of opinion the Kentucky decree is void as to her under the law as well settled in this jurisdiction.

It is undoubtedly true that the matrimonial domicile of the 134 wife is that of her husband, but this general rule has its exceptions.

In this case we have the finding that the plaintiff was justi.

fied in leaving her husband, and that her sole reason for so doing was his cruel and inhuman treatment.

This court said in Hunt v. Hunt, 72 N. Y. 217, 28 Am. Rep. 129, in speaking of the general rule as to the wife's domicile, at page 242: "There are, however, exceptions to the rule, one of which is invoked by the plaintiff in this suit, so that in certain cases a married woman may have a domicile in another jurisdiction than that of her husband. This is so, when they are living aparc under a judicial decree of separation, or when the conduct of the husband has been such as to entitle the wife to an absolute or limited divorce. She may acquire a separate domicile whenever it is necessary for her to do so. But the right to do so springs from the necessity for its exercise."

In the case at bar we have the undoubted right of the plaintiff to change her domicile under this rule, followed up by the finding that she did so change it to the state of New York.

It has been held in many cases that the jurisdiction of the court of another state in which judgment has been rendered, is always open to inquiry in the courts of this state; and if that court has exceeded its jurisdiction, or has not obtained jurisdiction of the parties, the proceedings are void: Kerr v. Kerr, 41 N. Y. 272; Hoffman v. Hoffman, 46 N. Y. 30; 7 Am. Rep. 299; Hunt v. Hunt, 72 N. Y. 217; 28 Am. Rep. 129; People v. Baker, 76 N. Y. 78; 32 Am. Rep. 274; O'Dea v. O'Dea, 101 N. Y. 23; Jones v. Jones, 108 N. Y. 415; 2 Am. St. Rep. 447; De Meli v. De Meli, 120 N. Y. 485; 17 Am. St. Rep. 652; Rigney v. Rigney, 127 N. Y. 408; 24 Am. St. Rep. 462; Williams v. Williams, 130 N. Y. 193; 27 Am. St. Rep. 517.

We have carefully examined the evidence and have reached the conclusion that the findings of the trial court as to the issues of domicile of the plaintiff and the cruel and inhuman treatment by defendant of his wife are not without evidence to support them, and because of their affirmance by the general term they are binding upon this court.

It, therefore, follows upon the facts and the law, that the Kentucky judgment is not a bar to this action.

185 It remains for us to consider the appellant's points based on the alleged effect of the agreement entered into by the plaintiff, her trustee, and the defendant just prior to plaintiff's final departure from Kentucky.

This agreement bears date October 10, 1891. We do not regard this instrument as technically articles of separation between husband and wife, but rather an agreement to provide for

the best interests of the child, made in contemplation of the fact that the parents had separated and were to live in different jurisdictions.

The opening recitation of the agreement refers to the parties as "having ceased to live together as man and wife, without in any way acknowledging upon whom is the fault, or condoning the conduct of the one or the other which has led to the existing state of affairs, or preventing any consequences which may follow, or right which may arise to either party if such status shall continue." This language makes it clear that, while the separation was recognized as a fact, the agreement was not to prejudice or affect existing rights of either party growing out of that situation.

The recitation clause further states that the parties desire to provide for the best interests of the child, and with this view they have entered into the agreement. It provides for the alternating custody of the child by her mother and the mother of the defendant; the defendant obligates himself to pay five hundred dollars for maintenance of the child during that portion. of the year in which she is with her mother; the wife is to receive alimony at the rate of one hundred and twenty-five dollars a month, the divorce or second marriage of either party to terminate the agreement; the agreement was to continue as to the child until she was fourteen years of age, and as to her mother until January 8, 1904; if divorce was granted, the provisions as to plaintiff were to be carried into the decree.

There are other details not necessary to mention. We are of opinion that the suit for absolute divorce brought by the husband in Kentucky in December, 1892, and the action for limited divorce instituted by the wife in this state in January, 136 1893, both having proceeded to judgment, may be regarde l as a mutual abandonment and termination of the agreement under its terms, and left the court below free to act as it deemed proper respecting the alimony of the wife and the custody and maintenance of the child. The provision of the agreement for the wife's alimony was not carried into the Kentucky decree, but the judgment in this action provides for the same amount of alimony per month of one hundred and twenty-five dollars.

It is unnecessary for us to tonsider any of the questions which are argued in the briefs, resting on the assumption that the agreement was in full force and effect at the time the judgment was entered herein at trial term. The husband and wife had sought relief in the courts, and the interests of the child

were safe, with the supreme court of this state guarding her rights.

The judgment of the general term should be affirmed, with costs.

All concur, except Gray, J., absent, and Martin, J., not sitting.

MARRIAGE AND DIVORCE-VALIDITY OF DIVORCE OBTAINED IN ANOTHER STATE.-Jurisdiction of a court of record of another state of the subject of divorce, is a special authority not recognized by the common law, and its power must be shown and must appear to have been strictly pursued: Kelley v. Kelley, 161 Mass. 111; 42 Am. St. Rep. 389, and note. A divorce granted by such court without jurisdiction of the party against whom the decree is given, is entitled to no credit in the courts of a sister state: Harding v. Alden, 9 Me. 140; 23 Am. Dec. 549. See, as to the effect of a foreign divorce, the monographic note to Tolen v. Tolen, 21 Am. Dec. 747-752. For recent cases see Loker v. Gerald, 157 Mass. 42; 34 Am. St. Rep. 252; Doerr v. Forsythe, 50 Ohio St. 726; 40 Am. St. Rep. 703; Harris v. Harris, 115 N. C. 587; 44 Am. St. Rep. 471; McCreery v. Davis, 44 S. C. 195; 51 Am. St. Rep. 794, and notes thereto.

MARRIAGE AND DIVORCE-DOMICILE OF WIFE.-Generally the domicile of the wife is determined by that of the husband: Jenness v. Jenness, 24 Ind. 355; 87 Am. Dec. 335. This is so when her separation from him is without justifiable cause: Loker v. Gerald, 157 Mass. 42; 34 Am. St. Rep. 252, and note. But they may have different domiciles under the law regulating divorces where the husband has forfeited his rights by misbehavior and desertion of his wife: Harding v. Alden, 9 Me. 140; 23 Am. Dec. 549; Jenness v. Jenness, 24 Ind. 355; 87 Am. Dec. 335.


[155 NEW YORK, 201.]

A PHYSICIAN AND SURGEON BY TAKING CHARGE OF A CASE IMPLIEDLY REPRESENTS that he possesses, and the law places upon him the duty of possessing and exercising, that reasonable degree of learning and skill ordinarily possessed by physicians and surgeons in the locality where he practices, and which is ordinarily regarded as necessary to qualify him to engage Ir the business of practicing medicine and surgery.

A PHYSICIAN AND SURGEON IS LIABLE TO HIS PATIENTS for any injury resulting from want of the knowledge and skill ordinarily possessed by persons of his profession in the locality, and for a failure to use his best judgment or to exercise reasonable care.

A PHYSICIAN AND SURGEON IS NOT REQUIRED TO POSSESS THAT EXTRAORDINARY LEARNING AND SKILL which belong only to a few men of rare attainments, but such as is possessed by the average member of the medical profession in good standing. He is, however, required to keep abreast of the times, and his departure from approved methods in general use,

If it injures his patient, renders him liable, however good his intentions may have been.

PHYSICIAN AND SURGEON, DUTY OF, TO WHAT EXTENDS.-The duty of a surgeon, and his liability for not exercising reasonable care, extend not only to diagnosis and treatment, but also to giving all proper instructions to his patient in relation to conduct, exercise, and the use of an injured limb, in the event of his being called to treat an injury of that character.

PHYSICIANS AND SURGEONS-ERRORS OF JUDGMENT, LIABILITY FOR.-The rule requiring a physician and surgeon to use his best judgment does not hold him answerable for a mere error of judgment, provided he does what he thinks best after a careful examination.

A PHYSICIAN OR SURGEON DOES NOT GUARANTEE that his treatment of a patient shall produce a good result, but does guarantee that he will use the skill and learning of the average physician or surgeon, and will exercise reasonable care, and give his best judgment, in an effort to bring about a good result.

Thomas F. Conway, for the appellant.

Royal Corbin, for the respondent.

204 VANN, J. As the case was not submitted to the jury we must assume, on this review, that if they had been allowed to exercise their judgment they would have found all the facts in favor of the plaintiff that any reasonable view of the evidence would permit. Upon this basis the facts may be stated as follows: On the 2d of May, 1888, the plaintiff, then forty-four years of age, with good health and sound limbs, had the patella or kneepan of his right leg broken by the kick of a horse. When the accident happened he was five miles from home and two and one-half miles from the village where the defendant, a physician and surgeon, resided. He drove to the office of the defendant, who was absent, but the father of the defendant, who was also a physician and surgeon, was there and treated the injury by applying on each side a strip of adhesive plaster twelve or fifteen inches long to the calf of the leg, and running it over the knee to the side of the thigh. The leg was then bandaged, a splint eighteen inches long put on, another bandage wrapped over all, and thereupon the plaintiff walked to his wagon and rode home over a rough road. He noticed on the way that the bandage and splint had become loose, and on reaching home, with the aid of his wife, he tightened them as well as he could. The leg received no further treatment, nor did the defendant see it until May 8th, six days after the accident, when he came to plaintiff's house in response to a message requesting him to call. He was told how his father had treated the injury; that the plaintiff rode home in a buggy and walked into the house, and

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