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(182 Ky. 65, 206 S. W. 23.) husband
the seductress of her her husband should not be coextensive with his right of action against her seducer.
In 8 Am. & Eng. Enc. Law, 2d ed. 262, it is said: "The tendency of modern thought is to abrogate the idea of superior and inferior from the relation of husband and wife and as, under the statutes which have in recent years been passed in the various states, married women are permitted to sue independently of their husbands and to hold separate property, the reasons for the distinction would seem no longer to be tenable, and it has been held that under such statutes a married woman may maintain an action for criminal conversation"-citing Foot v. Card, 58 Conn. 1, 6 L.R.A. 829, 18 Am. St. Rep. 258, 18 Atl. 1027; Seaver v. Adams, 66 N. H. 142, 49 Am. St. Rep. 597, 19 Atl. 776. See also Westlake v. Westlake, 34 Ohio St. 621, 32 Am. Rep. 397; Clow v. Chapman, 125 Mo. 101, 26 L.R.A. 412, 46 Am. St. Rep. 468, 28 S. W. 328.
The modern rule is well stated by the court of appeals of New York in Bennett v. Bennett, 116 N. Y. 584, 6 L.R.A. 553, 23 N. E. 17: "The actual injury to the wife from the loss of consortium, which is the basis of the action, is the same as the actual injury to the husband from that cause. His right to the conjugal society of his wife is no greater than her right to the conjugal society of her husband. Marriage gives to each the same rights in that regard. Each is entitled to the comfort, companionship and affection of the other. The rights of the one and the obligations of the other spring from the marriage contract, are mutual in character, and attach to the husband as husband and to the wife as wife. Any interference with these rights, whether of the husband or of the wife, is a violation, not only of a natural right, but also of a legal right, arising out of the marriage relation. As the wrongs of the wife are the same in principle, and are caused by acts of the same nature, as those of the
husband, the remedy should be the same."
The late case of Rott v. Goehring, 33 N. D. 413, L.R.A.1916E, 1086, Ann. Cas. 1918A, 643, 157 N. W. 294, decided in 1916, is interesting as illustrative of the modern tendency to abolish the distinction between the wife's right to bring an action for the alienation of her husband's affections and for criminal conversation. In that case the supreme court of North Dakota said it was immaterial, under the statute abolishing forms of action, whether the action was one for alienation of affections alone, or was for both alienation of affections and criminal conversation, and that, if the facts alleged in the petition, when properly established, entitled the plaintiff to any relief under the law, she might recover. Having reached the conclusion that the plaintiff had sustained her cause of action for the alienation of her husband's affections, the court concluded as follows: "Having reached the above conclusion, it is immaterial to plaintiff's recovery whether the complaint also states a cause of action for criminal conversation, and also as to whether the latter kind of action will lie in this state at the suit of the wife. We shall, therefore, refrain from deciding this question; but the following authorities sustaining such an action may be of interest to the legal profession. They also lend support to our views above expressed: 8 Am. & Eng. Enc. Law, 2d ed. 261; Seaver v. Adams, 66 N. H. 142, 49 Am. St. Rep. 597, 19 Atl. 776; Dodge v. Rush, 28 App. D. C. 149, 8 Ann. Cas. 671."
The Married Women's Act of 1894 (Acts 1894, chap. 76; Ky. Stat. § 2128) removes one of the commonlaw objections to the wife's right to maintain an action for criminal conversation by empowering her to sue, as a single woman, for the protection of her rights without the consent of her husband; and we are not much impressed with the remaining ground of the argument based upon
a supposed public policy. The public policy of a state is expressed in its Constitution and statutes, and in its common law as found in the opinions of its court of last resort. Gathright v. H. M. Byllesby & Co. 154 Ky. 106, 157 S. W. 45. But in none of these ways has this commonwealth heretofore declared its public policy upon this question; and, this being the first opportunity this court has had of passing upon it, the question is to be decided upon sound principles and authority. If suits of this character upon the wife's part would tend to raise family dissensions and neighborhood scandals, the same result would be obtained in case the husband brings such an action; and, as above stated, the fact that the husband's injury by the infidelity of his spouse may be of the greater and more serious character is no answer to the claim upon the part of the wife to maintain a similar action for a less injury. If she is injured at all in such a case (and no one will deny it), she should have the right to maintain her action therefor, and the verdict be measured accordingly. But to say that the husband has a right to maintain an action against his wife's para mour, and that she should not have a like right of action against his paramour, is to wholly destroy that equality of right which is the boast of our institutions.
tate, to the rents and profits of her realty, to her earnings and labor; and the power of the control of the wife by the husband was caused to such an extent as to vest in him the right to use such forcible means as would bridle her tongue or make her of good behavior. This rule is a harsh one at best, and with the progress of civilization, and the changes by wise, modern legislation. of the relation between husband and wife as to the right of property and personal control by the husband, it would seem absurd in this enlightened age to regard the wife as a mere machine, made to labor and to talk as the husband directs, and to make him liable on that ground for her torts when not committed by his direction or procurement."
It is well known that under the common law the husband was responsible for the wife's slander, upon the supposition that he controlled her actions in that respect. But this theory was evidently incorrect when applied to modern conditions, and in Lane v. Bryant, 100 Ky. 138, 36 L.R.A. 709, 37 S. W. 584, this court so held, and refused to be bound by the legal fiction that the husband could control his wife's tongue. In the course of that opinion this court said: "The liability of the husband at the common law was based on the idea of his absolute dominion over the person of his wife, with the right to all of her personal and the use of her real es
And in that opinion, after pointing out that, under our Married Women's Act of 1894, the commonlaw unity of husband and wife had been destroyed, Chief Justice Pryor paraphrastically quoted from Martin v. Robson, 65 Ill. 129, 16 Am. Rep. 578, as follows: "The legal supremacy of the husband is gone and the scepter departed from him. The wife has the legal right and aspires to battle with him in the contests of the forum, to outvie him in the healing art, to climb with him the steps of fame, and share with him in every occupation. Her brain and hands and tongue are her own, and she should alone be responsible for slanders uttered by herself."
The reasoning in Deitzman v. Mullin, 108 Ky. 610, 50 L.R.A. 808, 94 Am. St. Rep. 390, 57 S. W. 247; and Haynes v. Nowlin, 129 Ind. 581, 14 L.R.A. 787, 28 Am. St. Rep. 213, 29 N. E. 389, points to the same conclusion. See also Schuler v. Henry, 42 Colo. 377, 14 L.R.A. (N.S.) 1013, 94 Pac. 360.
We are therefore of opinion that, although the common-law rule prevented the wife -criminal from bringing an conversationaction for criminal action by wife. conversation, it is no longer applicable under our present statute, which places the wife upon an equal
(182 Ky. 65, 206 S. W. 23.)
footing with the husband as to her right to sue, for the purpose of protecting and enforcing her rights of every kind and character.
Judgment reversed, and action re
manded, with instructions to overrule the demurrer to the petition as amended, and for further proceedings consistent with this opinion. Settle, Ch. J., not sitting.
Wife's right of action for criminal conversation.
The rule in the majority of jurisdictions is that a wife has a right of action for criminal conversation.
United States.-See Ash v. Prunier (1901) 44 C. C. A. 675, 105 Fed. 722. Alabama.- Parker V. Newman (1917) — Ala. 75 So. 479. Connecticut.-Foot v. Card (1889) 58 Conn. 1, 6 L.R.A. 829, 18 Am. St. Rep. 258, 18 Atl. 1027.
District of Columbia.-Dodge v. Rush (1906) 28 App. D. C. 149, 8 Ann. Cas. 671.
Kentucky. See Deitzman v. Mullin (1900) 108 Ky. 610, 50 L.R.A. 808, 94 Am. St. Rep. 390, 57 S. W. 247; Scott v. O'Brien (1908) 129 Ky. 1, 130 Am. St. Rep. 419, 16 L.R.A. (N.S.) 742, 110 S. W. 260. See also the reported case (TURNER V. HEAVRIN, ante, 562).
Massachusetts.-Nolin v. Pearson (1906) 191 Mass. 283, 4 L.R.A. (N.S.) 643, 77 N. E. 890, 6 Ann. Cas. 658.
New Hampshire.-Seaver v. Adams (1889) 66 N. H. 142, 49 Am. St. Rep. 797, 19 Atl. 776.
New York. Breiman v. Paasch (1879) 7 Abb. N. C. 249: Churchill v. Lewis (1886) 17 Abb. N. C. 226.
North Dakota.-Rott v. Goehring (1916) 33 N. D. 413, L.R.A.1916E, 1086, 157 N. W. 294, Ann. Cas. 1918A, 643.
Vermont.-See Frederick v. Morse (1912) 88 Vt. 126, 92 Atl. 16.
In Dodge v. Rush (D. C.) supra, the court held that a wife has the right to sue for criminal conversation with her husband, saying: "The underlying ground of the common-law rule of discrimination between husband and wife in respect of this right, namely, the incapacity of the wife to maintain a separate action for a tort, has been swept away by the modern legislation that has so generally relieved the wife
of the ordinary disabilities of coverture. While the injurious consequences of a wife's adultery may be more far-reaching because of the legitimacy of children, her conjugal rights are in principle the same, substantially, as his. Whatever the ancient doctrine may have been, modern morals and law recognize the equal obligation and right of husband and wife. Nor can the consent of either to his or her defilement affect the right of action of the injured spouse against the other wrongdoer."
In Parker v. Newman (Ala.) supra, the court held that under the statute enabling married women to sue for personal injuries (Code, §§ 4489-4493) a wife has the right to sue for criminal conversation with her husband.
In the reported case (TURNER V. HEAVRIN) it is held that, under a statute (Married Woman's Act, 1894, Ky. Stat. chap. 76, § 2128), the commonlaw rule preventing the wife from bringing an action for criminal conversation is no longer applicable, and the wife is now placed on an equal footing with the husband, and may maintain an action for the injury caused by criminal conversation with the husband.
In Rott v. Goehring (N. D.) supra, wherein the complainant wife charged the defendant with enticing her husband to sexual intercourse, the court held that the wife could maintain the action, and that it did not matter whether the complaint set forth a cause of action for alienation of affections or for criminal conversation, forms of action being abolished (Comp. Laws, § 7355).
So in Foot v. Card (Conn.) supra, wherein it appeared that the defendant had been living in adultery with the plaintiff's husband, the court held
that the injured wife could maintain an action to recover damages for the alienation of her husband's affections and for criminal conversation, saying: "Inasmuch as by universal consent it is of the essence of every marriage contract that the parties thereto shall, in regard to this particular matter of conjugal society and affection, stand upon an equality, we are unable to find any support for the denial in this reason [inferiority of the wife] and, the right, the injury, and the consequent damage being admitted, then comes into operation another rule, namely, that the law will permit no one to obtain redress for wrong except by its instrumentality, and it will furnish a mode for obtaining adequate redress for every wrong. This rule, lying at the foundation of all law, is more potent than and takes precedence of the reason that the wife is, in this regard, without the pale of the law because of her inferiority."
In Nolin v. Pearson (Mass.) supra, wherein it appeared that the defendant had committed various acts of adultery with the plaintiff's husband, the court held that the plaintiff could maintain the action, applying a statute (Rev. Laws, chap. 212, § 10, chap. 215, 1) which permits a recovery by a married woman "for damages which flow from a wrong suffered from a violation of personal rights." It was held that, the consortium and exclusive access to the spouse being a personal right of a wife, she might recover for the violation thereof.
In Seaver v. Adams (1889) 66 N. H. 142, 49 Am. St. Rep. 797, 19 Atl. 776, it was held that a married woman had a right of action against one who seduced her husband, the court saying: "To entice away or corrupt the mind and affection of one's consort is a civil wrong, for which the offender is liable to the injured husband or wife."
In Breiman v. Paasch (1879) 7 Abb. N. C. (N. Y.) 249, the first case in New York to consider this subject, the court held that a wife could maintam an action against the paramour of her husband, for seducing him. The court said: "This is a special action on the case for a wrong; and for every wrong
wilfully, or even negligently, inflicted, and causing loss and damage, there is a remedy. That is so with us, even if the party injured be a married woman. Many of the disabilities imposed on her by the common law have been shaken off, and she may now sue and be sued without the consent of her husband, and without his being a party to the record."
In Churchill v. Lewis (1886) 17 Abb. N. C. (N. Y.) 226, the court held that an action would lie by a wife against a woman who seduced her husband, and induced him to have sexual intercourse with her. It does not clearly appear whether the action was brought by the wife for criminal conversation or for alienation of affections.
But in Romaine v. Decker (1896) 11 App. Div. 20, 43 N. Y. Supp. 79, the court said, by way of dictum: "We will concede, at least for the purposes of the discussion, that a wife cannot maintain an action against another woman because merely of her having had carnal intercourse with her husband; in other words, an action for criminal conversation pure and simple." In that case the action was brought by the wife for damages, for the enticement of her husband away from her by adulterous acts.
So, in Strock v. Russell (1911) 148 App. Div. 483, 132 N. Y. Supp. 968, an action by a wife, charging the defendant with having alienated the affections of her husband by having adulterous intercourse with him, the court said obiter: "By § 831 of the Code of Civil Procedure it is provided that in an action for criminal conversation the plaintiff's wife is not a competent witness for the plaintiff, but she is a competent witness for the defendant as to any matter in controversy, except as to the disclosure of confidential communications. The purpose of this exclusion would seem to be to prevent collusion between husband and wife. If such be the purpose of the section, it is difficult to understand why the husband also should not be disqualified to testify in behalf of the wife in such an action, if such an action will lie in behalf of the wife. Is not this section in fact a legislative declara
tion of the law that such an action will not lie in behalf of the wife? In an action by the husband against another man, the mere act of adulterous intercourse raises a presumption that the defendant induced the wife to such an act. No such inference could be indulged in an action by the wife against another woman, for having had adulterous relations with her husband. But it is unnecessary to decide this question in this case."
In Scott v. O'Brien (1908) 129 Ky. 1, 16 L.R.A.(N.S.) 742, 130 Am. St. Rep. 419, 110 S. W. 260, an action for alienation of affections, the court intimated an opinion that a wife could maintain an action for criminal conversation. See, to the same effect, Deitzman v. Mullin (1900) 108 Ky. 610, 50 L.R.A. 808, 94 Am. St. Rep. 390, 57 S. W. 247.
In Ash v. Prunier (1901) 44 C. C. A. 675, 105 Fed. 722, the court entertained an action on the part of a wife to recover damages for the seduction of her husband, no question of the wife's right to bring the action having been raised.
So, in Frederick v. Morse (1912) 88 Vt. 126, 92 Atl. 16, no question was raised as to the right of the plaintiff wife to maintain an action for damages for criminal conversation.
In Canada and a few of the American states, the rule is that a wife cannot maintain an action for criminal conversation. Doe v. Roe (1890) 82 Me. 503, 8 L.R.A. 833, 17 Am. St. Rep. 499, 20 Atl. 83; Kroessin v. Keller (1895) 60 Minn. 372, 27 L.R.A. 685, 51 Am. St. Rep. 533, 62 N. W. 438; Hodge v. Wetzler (1903) 69 N. J. L. 490, 55 Atl. 49; Lellis v. Lambert (1895) 24 Ont. App. Rep. 653; Lawry v. Lawry (1901) 2 Ont. L. Rep. 162; Weston v. Perry (1909) 14 Ont. Week. Rep. 956.
Thus, it has been said in the leading Canadian case on this subject: "Adultery at the present day, as far as respects the temporal courts, is considered merely as a civil injury; and the only remedy which the law affords is an action whereby the husband may recover against the adulterer a com
pensation in damages, for the loss of the society, comforts, and assistance of his wife, in consequence of the adultery. The right to maintain an action against an adulterer belongs only to the husband." Lellis V. Lambert (1895) 24 Ont. App. Rep. 653.
In Hodge v. Wetzler (1903) 69 N. J. L. 490, 55 Atl. 49, it was held that neither at common law nor under the statute in New Jersey (Gen. Stat. pp. 2012, 2536) could a wife maintain an action against one committing adultery with her husband, holding that the Married Women's Enabling Acts, being in derogation of the common law, must be construed strictly, and that by such a construction it was apparent that the statute was not designed to create a new cause of action in favor of a wife, for criminal conversation.
In Doe v. Roe (Me.) supra, it was held that a wife could not maintain an action against one for carnally knowing and debauching her husband, the court saying: "It is true that a husband may maintain an action for the seduction of his wife. But such an action has grounds on which to rest that cannot be invoked in support of a similar action in favor of the wife. A wife's infidelity may impose upon her husband the support of another man's child. And what is still worse, it may throw suspicion upon the legitimacy of his own children. A husband's infidelity can inflict no such consequences upon his wife. If she remains virtuous, no suspicion can attach to the legitimacy of her children."
In Kroessin v. Keller (1895) 60 Minn. 372, 27 L.R.A. 685, 51 Am. St. Rep. 533, 62 N. W. 438, the court held that a wife could not maintain an action for criminal conversation with her husband, where no allegation or proof was made that the defendant, by the adulterous acts, deprived the plaintiff of the consortium, support, and affection of her husband. The court said: "It is to be noticed here that it is not alleged that the defendant was the seducer of the husband, or that plaintiff has been deprived of his support; nor is it an action for