
    Siebert v. Siebert.
    (Decided June 24, 1929.)
    
      Mr. Otto L. Hankison, for plaintiff in error.
    
      Mr. Carl J. Christensen, for defendant in error.
   Lloyd, J.

Plaintiff in error, Robert Siebert, who was tbe defendant in tbe court of common pleas, seeks to reverse a judgment granting a divorce to the plaintiff therein, Irene E. Siebert, the defendant in error herein.

On March 29, 1928, Irene E. Siebert, as plaintiff, filed a petition in the court of common pleas against Robert Siebert, as defendant, praying therein for a divorce upon the ground of gross neglect of duty. An answer was filed by the defendant, and the cause tried upon the merits, whereupon, at the conclusion of all of the evidence, plaintiff was denied a divorce, and her petition dismissed. Thereafter, on September 13, 1928, the plaintiff again filed a petition, praying to be divorced from the defendant, alleging therein, as in the former action, gross neglect of duty on the part of the defendant, and, in addition thereto, that defendant had been guilty of extreme cruelty. To this petition the defendant filed a general denial, alleging also, in his answer, an adjudication of plaintiff’s cause of action by the judgment in the prior action commenced by her on March 29, 1928. The first action was tried June 19, 1928, and the second on January 29, 1929.

At the second trial the plaintiff secured a divorce. The defendant, as plaintiff in error, seeks a reversal of the judgment, claiming first that the judgment in the first action was an adjudication as to the alleged misconduct of defendant occurring prior thereto; and, second, that the judgment is against the weight of the evidence.

Mrs. Siebert was 21 years of age at the time of her marriage on July 22,1920, and was a nurse employed at Robinwood Hospital. There are no children. Since April, 1922, she has been in the employ of the Lamson Brothers Company; her position now being buyer for that concern. She lived with defendant until New Year’s Eve, 1928, when she left, telling him, in substance, according to her testimony, that it was none of his business what she did. They have not lived together since that date. The record of the first trial was offered and received in evidence at the second trial, and is a part of the record now under review by this court. It appears therefrom that some of the incidents as to which plaintiff testified at the second trial were contradictory of statements made by her at the first trial, but many claimed happenings were testified to at the second trial with respect to which she had not testified at the first trial, all of which, however, with two exceptions, occurred prior to the first trial. The subject-matter of both actions was the same.

As said by Marshall, C. J., in Arnold v. Arnold, 110 Ohio St., 416, 420, 144 N. E., 261, 262: “While there may be separate breaches of duty, -there is a single cause of action.” The prayer of each of the petitions was for a divorce, and the plaintiff was privileged to allege in her first petition all known existing grounds of divorce, and to offer evidence of everything which occurred prior to the trial of the action upon which she relied for the judgment she sought. A plaintiff in an action for divorce cannot allege and offer evidence on one of the statutory grounds, and then, when unsuccessful, commence another action on another ground, amplifying the evidence in support thereof, all of which, however, relates to happenings prior to the first trial, any more than a plaintiff in an action for personal injuries can choose to allege in his petition and rely at the trial upon one act of negligence and then, when the verdict and judgment are adverse, file another petition, alleging another and different act of negligence. If the law were otherwise, it would not only multiply litigation, but in some instances, at least, would be an inducement to perjury. Strangward v. American Brass Bedstead Co., 82 Ohio St., 121, 91 N. E., 988; Arnold v. Arnold, 110 Ohio St., 416, 144 N. E., 261; Mullen v. Mullen, 11 N. P. (N. S.), 353, 21 O. D., N. P., 356.

There was no evidence offered at the second trial that might not have been presented at the first trial, with the exception of two incidents occurring, it is claimed, on June 22 and June 30, 1928, which were denied by Mr. Siebert, as was also the misconduct preceding the first trial, with which he was charged. These alone, in the opinion of a majority of this court, are quite insufficient as a basis for the judgment rendered, especially in view of the-fact that the law requires something more than a scintilla of evidence to justify a judgment of divorce. The trial judge indicated, in what he had to say at the conclusion of the second trial, that the divorce was granted rather because of the alleged conduct of Siebert prior to the first trial than upon anything occurring subsequent thereto. Among other things he said:

“I think Siebert is to blame here in this case, because he ought to be a good sport and give her a divorce here, when she was not asking for anything but freedom, or else ask for a divorce himself. * * *
“I am not granting a divorce on the ground that was assumed in the other case. I am granting it on the ground of extreme cruelty, that has been shown during their married life, because, as I said before, the first petition was brought on the ground of gross neglect of duty, and I think it is res adjudicada as to that ground, but there are additional grounds which were not brought out in the other case, and that is the ground, and I think we have evidence enough. * * *
“This case has bothered me long enough. She has got from him what she wants; he has got it, too; why should they stay together and fight all the time ? ’ ’

' Marriage is, and should be regarded as, something more than simply a contract, to be abrogated at the will of one or the other of the parties, or because of mere inconvenience, unhappiness, or incompatibility of temperament or disposition, or the desire for pre-marriage freedom, or because the material comforts and pleasures of life are not provided as abundantly as was anticipated and expected. The obligations created are reciprocal. Each has undertaken to do his part to the measure of his ability and capacity, and more than that neither can require. An action for divorce involves something more than a private controversy. It also concerns the public, and, liberal as are the statutes of Ohio in providing causes for divorce, the Legislature has not so far seen fit to provide that a divorce may be granted on the mere ground of expediency.

Judge Richards and myself are of the opinion that the judgment is clearly and manifestly against the weight of the evidence and should be reversed, but since the law (Section 6, Article IY, of the Constitution) requires the concurrence of all of the members of the court to reverse a judgment on that ground, and Judge Williams is of the contrary opinion, the judgment is affirmed.

Judgment affirmed.

Williams, J., concurs in judgment of affirmance.

Lloyd and Richards, JJ., concur in opinion, and dissent from the judgment.  