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1. A married woman may maintain an action against her husband's paramour for criminal conversation with him, where the statute empowers her to sue as a single woman, for the protection of her rights, without the consent of her husband.

[See note on this question beginning on page 569.]

action for alienation of affections. 2. A woman may maintain an action to recover damages for the alienation of her husband's affections.

[See 13 R. C. L. 1459 et seq.] Definition criminal conversation.

3. The term, "criminal conversation," in its relation to the right to maintain actions therefor, is defined as adultery in the aspect of a tort. [See 13 R. C. L. 1484.]

Adultery

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as trespass.

4. The commission of adultery by either spouse is a trespass upon the rights of the other.

[See 13 R. C. L. 1485, 1488.] Husband and wife-action for seduction.

5. A man has a right of action for damages against the seducer of his wife.

[See 13 R. C. L. 1485.]

APPEAL by plaintiff from a judgment of the Circuit Court for Ohio County dismissing an action brought to recover damages for alleged criminal conversation by defendant with plaintiff's husband. Reversed. The facts are stated in the opinion of the court. Messrs. J. F. Gordon and H. P. Taylor, for appellant:

Á female spouse may maintain an action for criminal conversation.

Seaver v. Adams, 66 N. H. 142, 49 Am. St. Rep. 597, 19 Atl. 776; Haynes v. Nowlin, 129 Ind. 581, 14 L.R.A. 789, 28 Am. St. Rep. 213, 29 N. E. 389; Deitzman v. Mullin, 108 Ky. 611, 50 L.R.A. 808, 94 Am. St. Rep. 390, 57 S. W. 247; Merritt v. Cravens, 168 Ky. 155, L.R.A.1917F, 935, 181 S. W. 970.

Messrs. Glenn & Simmerman, W. H. Barnes, Ben D. Ringo, and A. D. Kirk, for appellee:

A married woman has no cause of action against another for criminal conversation with her husband.

21 Cyc. 1627; Doe v. Roe, 82 Me. 503, 8 L.R.A. 833, 17 Am. St. Rep. 499, 20 Atl. 83; Kroessin v. Keller, 60 Minn. 372, 27 L.R.A. 685, 51 Am. St. Rep. 533. 62 N. W. 438.

(182 Ky. 65, 206 S. W. 23.)

Miller, J., delivered the opinion of the court:

This is an action for damages by Anna Lee Turner, a married woman, against Mary Heavrin. The petition, as amended, stated two grounds of action against the defendant: (1) Her alienation of the affections of plaintiff's husband; and (2) her criminal conversation with him. The plaintiff, however, dismissed so much of her petition as sought damages for the alienation of the affections of her husband, and relied solely upon so much of her petition as sought a recovery for criminal conversation. The plaintiff alleged, in substance, that the defendant debauched and carnally knew her husband, thereby alienating his affections and depriving her of his comfort, society, and support. The circuit court dismissed the petition, and the plaintiff appeals.

Husband and wife-action for alienation of affections.

21

So the only question presented upon this appeal is this: Can a married woman maintain an action against another woman for having criminal conversation with the married woman's husband? The common law unequivocally answered the question in the negative. Cyc. 1627; 13 R. C. L. p. 1487. The question is, however, one of first impression in this jurisdiction. There can be no doubt about the wife's right to maintain an action for the alienation of her husband's affections; and that right is thoroughly recognized in this jurisdiction. Deitzman v. Mullin, 108 Ky. 610, 50 L.R.A. 808, 94 Am. St. Rep. 390, 57 S. W. 247; Scott v. O'Brien, 129 Ky. 1, 16 L.R.A. (N.S.) 742, 130 Am. St. Rep. 419, 110 S. W. 260; Merritt v. Cravens, 168 Ky. 155, L.R.A. 1917F, 935, 181 S. W. 970. And in Merritt v. Cravens, supra, which was an action by the husband solely for the alienation of his wife's affections, there is a dictum to the effect that the law affords two separate and distinct remedies by which "either spouse" may recover

damages which they might suffer by reason of the wrongful invasion of any of the marital rights, and that these remedies are a suit for alienation of affections and a suit for criminal conversation. It is clear, however, that so much of that opinion as might be said to authorize the wife to maintain an action for criminal conversation was beyond the record and wholly unnecessary for the decision. That case, however, fully recognized the distinction between the two classes of actions.

In its general and comprehensive sense, the term, "criminal conversation," is synonymous with "adultery;" but in its more limited and technical signification, in which it is here to be consid

Definition

ered, it may be de- criminal fined as adultery in

conversation.

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Husband and

for seduction.

time immemorial the law has given the husband a right of action for damages against a seducer of his wife-action wife. But at common law the wife had no such right, though in natural justice there seems to be no good reason why her right to maintain an action against the seducer of her husband should not be as broad as his right of action against her seducer. If one had the right to sue, one would naturally say the other had the same right. But, as above stated, the common law has never seen fit to accord the wife the redress which it accorded to the husband. All the commentators upon the common law recognize the right of the husband to maintain an action for crim. con. as exclusively the right of the

husband. In 3 Blackstone's Commentaries, *139, it is said: "Adultery or criminal conversation with a man's wife, though it is, as a public crime, left by our laws to the coercion of the spiritual courts, yet, considered as a civil injury (and surely there can be no greater), the law gives a satisfaction to the husband for it by action of trespass vi et armis against the adulterer, wherein the damages recovered are usually very large and exemplary."

The reason for this distinction against the wife rested, not so much upon any principle of abstract right, as in the subservient relation which the wife occupied at the common law. The husband had a property in his wife's services, and it is upon the loss of this that his right of recovery was formerly placed. But, the wife having no property right in the services of her husband, she could not maintain the action. In 3 Blackstone's Commentaries, 143, the reason for this denial to an inferior is stated as follows: "The inferior hath no kind of property in the company, care, or assistance of the superior, as the superior is held to have in those of the inferior, and therefore the inferior can suffer no loss or injury. The wife cannot recover damages for beating her husband, for she hath no separate interest in anything during her coverture."

Moreover, at common law, in order for a wife to bring an action, her husband must consent to and be joined as a party plaintiff, and whatever damages she might recover would immediately become his property, since the law could not indulge such an indecency as that a man should so profit by his own wrong. 8 Am. & Eng. Enc. Law, 2d ed. 261. The rule is stated by Bouvier as follows: "The wife cannot maintain an action for criminal conversation with her husband; and for this, among other reasons, because her husband, who is particeps criminis, must be joined with her as plaintiff." Dict. verb. "Crim. Con."

The great weight of authority is

to that effect, although in some ju-
risdictions, in which it was con-
ceived that the denial of the right
to the wife rested principally upon
the question of parties and pro-
cedure, a different view has been
taken since the adoption of the mod-
ern Married Women's Acts, au-
thorizing married women to sue
alone, and to own and control the re-
covery. The general line of reason-
ing which denied the wife the right
to maintain the action was stated in
Doe v. Roe, 82 Me. 503, 8 L.R.A.
833, 17 Am. St. Rep. 499, 20 Atl.
83, decided in 1890, as follows:
"The question is whether such an
action is maintainable. For such a
wrong the law does not leave the
injured wife without redress. She
may obtain a divorce and a resto-
ration of all her property, real and
personal, and in addition thereto
alimony or an allowance out of her
husband's estate. And the law will
punish the guilty parties criminally.
But does the law, in addition to
these remedies, secure to her a
right of action to recover a pecuni-
ary compensation from her hus-
band's paramour?
band's paramour? We think not.
We have been referred to no reliable
authority for the existence of such
a right, and we can find none. 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 can-
not be invoked in support of a sim-
ilar 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 sus-
picion can attach to the legitimacy
of her children. And an action in
favor of the husband for the seduc-
tion of his wife has been regarded
as of doubtful expediency. It has
been abolished in England.

And the trials we have had in this
country of such actions are not very
encouraging. They seem to be bet-

(182 Ky. 65, 206 S. W. 23.)

ter calculated to inflict pain upon the innocent members of the families of the parties than to secure redress to the persons injured. And we fear such would be the result if such actions were maintainable by wives. Such a power would furnish them with the means of inflicting untold misery upon others, with little hope of redress for themselves. At any rate, we are satisfied that the law never has, and does not now, secure to wives such a power, and if it is deemed wise that they should have it, the legislature, and not the court, must give it to them."

The reasoning of this opinion Seems to rest upon the insubstantial distinction that, because the law gives a right of action in such cases to the husband on account of his possible greater injury, it should not give any redress to the wife for a similar act, because her injury is of less magnitude, and her right to sue might be abused. Evidently, pursuant to a supposed public policy as expressed in the foregoing opinion, the action for criminal conversation was abolished in England by § 59 of the Matrimonial Causes Act 1857 (20 & 21 Vict. chap. 85). But that statute provided that the husband, in a proceeding for a dissolution of the marriage, or for a judicial separation on the ground of the wife's adultery, might claim and recover damages from the corespondent; or he might, by petition, claim damages for adultery with his wife, without demanding other relief.

Again, in Kroessin v. Keller, 60 Minn. 372, 27 L.R.A. 685, 51 Am. St. Rep. 533, 62 N. W. 438, decided in 1895, the supreme court of Minnesota, in denying the right to the wife to maintain an action for criminal conversation, stated the reason for the rule in the following language:

"We are quite safe in saying that at common law no such action could have been maintained. The injured husband alone brought crim. con., and he could sustain the action by simply showing the adulterous intercourse. The grounds on which

the right to recover was based are well stated in Cooley on Torts, 224, and the principal elements were the disgrace which attached to the plaintiff as the husband of the unfaithful wife, and no such disgrace has ever rested upon the wife, if there was one, of the guilty defendant, and, of more importance,― the danger that a wife's infidelity might not only impose on her husband the support of children not his own, but, still worse, cast discredit upon the legitimacy of those really begotten by him. Because of these elements, the man was always conclusively presumed to be the guilty party. In the eye of the law, the female could not even give her consent to the adulterous acts, and, as a result, it was no defense in this form of action that the defendant had been enticed into criminal conversation through the acts and practices of the woman. From this statement as to the grounds or elements constituting this action, it will be seen that the principal ones cannot possibly exist or be involved in a similar action brought by a wife. And what has been said about the unavailability of the defense that the defendant himself was the victim, and not the seducer, is suggestive of what the courts might have to hold to be the rule of pleading, and what they might have to inquire into, upon the trial of an action of this kind. Would it be held, following the old rule we have mentioned, and for which the reason seems well founded, that it was no defense for the female sued to allege and prove that she was the party seduced, and that the greater wrong and injury had been inflicted upon her, not upon the plaintiff wife? Or would the contrary rule prevail? But we need not consider the subject further, for a moment's reflection will suggest the remarkable results flowing from the adoption of either rule."

See also note to Nolin v. Pearson, 6 Ann. Cas. 658.

Haynes v. Nowlin, 129 Ind. 581, 14 L.R.A. 787, 28 Am. St. Rep. 213,

29 N. E. 389, is relied upon by appellant to sustain this action; but that was an action for alienation of affections, and for that reason is not controlling here. Dodge v. Rush, 28 App. D. C. 149, 8 Ann. Cas. 671, is also relied upon by appellant. In that case, however, alienation of affections was alleged in two paragraphs, and criminal conversation was charged in a third paragraph; it being further alleged that plaintiff was deprived of the attention, society, and assistance of her husband by said acts of criminal conversation. The court pointed out the fact that the gist of the action was for the alienation of affections, which is the loss of consortium that is, the loss of the conjugal fellowship, company, co-operation, and aid of the husband, or wife; that loss of consortium is the actionable consequence of the injury, and that alienation of affections is a matter of aggravation. And the court further stated that, while it was necessary to plaintiff's recovery in such an action that she should show that the defendant's misconduct was an effective cause of the loss of consortium, it was not necessary that it should have been the sole cause, and that any unhappy relations which may have existed between the plaintiff and her husband, not caused by the conduct of the defendant, might affect the question of damages, although they would be in no sense a justification or palliation of defendant's conduct. And, although the court rested the plaintiff's right to maintain her action upon the paragraphs of the petition which sought damages for the alienation of her husband's affections, it went further, and also sustained her right under the third paragraph for criminal conversation. Upon this latter subject the court said: "While the injurious consequences of a wife's adultery may be more far-reaching because of probable difficulties and embarrassments in respect 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 Hart v. Knapp, 76 Conn. 135, 100 Am. St. Rep. 989, 55 Atl. 1021, and again in Miller v. Pearce, 86 Vt. 322, 43 L.R.A. (N.S.) 332, 85 Atl. 620, it was held that an action by the wife could be maintained against another woman for alienating the affections of her husband by committing adultery with him; the court holding, in the first case above cited, that carnal knowledge of the husband was as much a civil injury to the wife as carnal knowledge of the wife was a civil injury to the husband. In Seaver v. Adams, 66 N. H. 142, 49 Am. St. Rep. 597, 19 Atl. 776, decided in 1889, the supreme court of New Hampshire held that a married woman could maintain an action against another woman for seducing her husband. In reaching that conclusion, however, the court rested its departure from the common-law rule upon the fact that the tendency of modern legislation in that state had been to put the husband and wife upon an exact equality before the law, whereby the common-law rule of servitude in marriage had been repealed, so that the husband and wife now stand upon an equality of right in respect to property, torts, and contracts, subject only to certain exceptions limiting the liability of the wife upon certain contracts and covenants specified in the statute. In view of the statute giving the wife the right to sue in her own name, it was held that the former barbarous common-law fiction that her legal existence became suspended during the marriage, and was merged into that of her husband, had ceased by reason of the Married Women's Act of that state, and that no reason in natural justice existed why the right of the wife to maintain an action against

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