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LARSEN v. LARSEN (05/02/58)

May 2, 1958

LARSEN
v.
LARSEN, APPELLANT.



Appeal, No. 138, Jan. T., 1958, from order of Superior Court, Oct. T., 1956, No. 228, reversing decree of Court of Common Pleas of Clearfield County, Feb. T., 1955, No. 457, in case of Dr. E. Noer Larsen v. Mary Larsen. Order affirmed; reargument refused May 27, 1958.

COUNSEL

Robert V. Maine, with him Clarence K. Gundaker, for appellant.

Carl A. Belin, for appellee.

Before Jones, C.j., Bell, Chidsey, Musmanno, Jones and Cohen, JJ.

Author: Cohen

[ 392 Pa. Page 610]

OPINION BY MR. JUSTICE COHEN

Plaintiff, E. Noer Larsen, married the defendant on January 18, 1947. Within nine months the parties separated and thereafter have not lived together.

On April 19, 1948, plaintiff instituted an action for divorce against the defendant on the ground of indignities. In that proceeding the master, who saw the witnesses and heard the testimony, found that the plaintiff failed to establish a course of conduct by his wife amounting to indignities to his person and that he was the innocent and injured spouse. The report of the master was accepted by the trial court and, after a hearing on exceptions thereto, the divorce was refused. No appeal was taken.

On January 10, 1955, plaintiff instituted a second action for divorce, this time on the ground of desertion. The alleged withdrawal by Mrs. Larsen from the plaintiff's home occurred prior to the date of the first proceeding. Again, testimony was heard by a master who recommended that a divorce be granted. Defendant filed exceptions which were sustained by the lower

[ 392 Pa. Page 611]

    court, and the divorce was refused. Plaintiff then took an appeal to the Superior Court which reversed, and remanded the record for the entry of a decree of divorce. See 184 Pa. Superior Ct. 221, 132 A.2d 883 (1957).

The defendant thereupon petitioned this Court to review the judgment of the Superior Court and we granted allocatur.

On this appeal we limit ourselves to consideration of whether the adjudication of the factual issues involved in the first divorce action in 1947 under the doctrine of collateral estoppel controls the disposition of the present case.*fn1

When a judgment on the merits is rendered in favor of a defendant, the plaintiff is prevented by the principle of res judicata from subsequently bringing suit on the same cause of action although he presents a ground for the relief asked additional to those stated in the original action. Restatement, Judgments, § 63 (1942); Jones v. Costlow, 354 Pa. 245, 252-253, 47 A.2d 259 (1946). However, this rule does not apply to an action for divorce which is a proceeding in rem to affect a status. "Thus, where the plaintiff is unsuccessful in obtaining a divorce on a specified ground, the judgment does not preclude him from maintaining another action for divorce on other grounds, even

[ 392 Pa. Page 612]

    though they existed and were known to him prior to the bringing of the first action.*fn2 " Restatement, supra § 74, comment d at 337; Reiter v. Reiter, 159 Pa. Superior Ct. 344, 352, 48 A.2d 66 (1946); Commonwealth ex rel. Esenwein v. Esenwein, 153 Pa. Superior Ct. 69, 75-76, 33 A.2d 675 (1943), aff'd 348 Pa. 455, 35 A.2d 335 (1944), aff'd 325 U.S. 279 (1945). See Connor v. Connor, 168 Pa. Superior Ct. 339, 346, 77 A.2d 697 (1951). For this reason plaintiff's prior action for divorce based upon indignities to the person did not necessarily bar the successful prosecution of his second suit brought on the ground of desertion.

However, Mrs. Larsen contends that the judgment rendered against plaintiff in his earlier action for divorce on the ground of indignities creates a collateral estoppel as to the act of desertion now relied upon in the present proceeding. She reasons that since plaintiff testified to the alleged withdrawal in his earlier action for a divorce, the determinations of the court in that proceeding that plaintiff was not the innocent and injured spouse and had not proven indignities, established the fact that she had not wilfully and unjustifiably deserted the plaintiff, and consequently he may not now relitigate the issue.

It is true that if the parties to an action have had an opportunity to appear and be heard in a prior proceeding involving the same subject matter, all issues of fact which were actually adjudicated in the former action and essential to the judgment therein are concluded as between the parties even though the causes of action in the two proceedings are not identical. See Thal v. Krawitz, 365 Pa. 110, 112, 73 A.2d 376 (1950);

[ 392 Pa. Page 613]

Hence, the issue of desertion was not determined in the first action so as to preclude the plaintiff from litigating the issue in this proceeding.

Finding no error in the disposition made of this case by the Superior Court ...


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