so, if made in good faith, would not render the contract void even if material and untrue. In Commercial Bank v. Maryland Casualty Co. (1916) Mo. App. 187 S. W. 103, where the facts were the same as those in the case last cited, the court accepted the findings of the referee as a special verdict binding on the court. The casualty company complained that, at the time of the application for the bond, the bank made false representations, and that Meier's account was then overdrawn, of which the company received no notice. The referee disposed of this matter in his findings by stating “that his overdrafts known to the bank were treated as loans, which the bank afterwards collected.” R. S. OMA LEE TURNER, Appt., V. Kentucky Court of Appeals - November 15, 1918. (182 Ky. 65, 206 S. W. 23.) Husband and wife criminal conversation action by wife. 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. Adultery Adultery -- as trespass. 2. A woman may maintain an action 4. The commission of adultery by to recover damages for the alienation either spouse is a trespass upon the of her husband's affections. rights of the other. [See 13 R. C. L. 1459 et seq.] [See 13 R. C. L. 1485, 1488.) Definition - criminal conversation. Husband and wife-action for seduc 3. The term “criminal conversa- tion. tion," in its relation to the right to 5. A man has a right of action for maintain actions therefor, is defined damages against the seducer of his as adultery in the aspect of a tort. wife. [See 13 R. C. L. 1484.] [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. Tay. Messrs. Glenn & Simmerman, W. H. lor, for appellant: Barnes, Ben D. Ringo, and A. D. Kirk, Á female spouse may maintain an for appellee: action for criminal conversation. A married woman has no cause of Seaver v. Adams, 66 N. H. 142, 49 action against another for criminal Am. St. Rep. 597, 19 Atl. 776; Haynes conversation with her husband. v. Nowlin, 129 Ind. 581, 14 L.R.A. 789, 28 Am. St. Rep. 213, 29 N. E. 389; 21 Cyc. 1627; Doe v. Roe, 82 Me. 503, Deitzman v. Mullin, 108 Ky. 611, 50 8 L.R.A. 833, 17 Am. St. Rep. 499, 20 L.R.A. 808, 94 Am. St. Rep. 390, 57 S. Atl. 83; Kroessin v. Keller, 60 Minn. W. 247; Merritt v. Cravens, 168 Ky. 372, 27 L.R.A. 685, 51 Am. St. Rep. 533, 155, L.R.A.1917F, 935, 181 S. W. 970. 62 N. W. 438. (182 Ky. 65, 206 8. W. 23.) Miller, J., delivered the opinion of damages which they might suffer the court: by reason of the wrongful invasion This is an action for damages by of any of the marital rights, and Anna Lee Turner, a married woman, that these remedies are a suit for against Mary Heavrin. The peti- alienation of affections and a suit tion, as amended, stated two for criminal conversation. It is grounds of action against the de- clear, however, that so much of fendant: (1) Her alienation of the that opinion as might be said to auaffections of plaintiff's husband; thorize the wife to maintain an acand (2) her criminal conversation tion for criminal conversation was with him. The plaintiff, however, beyond the record and wholly_undismissed so much of her petition necessary for the decision. That as sought damages for the alien case, however, fully recognized the ation of the affections of her hus- distinction between the two classes band, and relied solely upon so of actions. much of her petition as sought a re- In its general and comprehensive covery for criminal conversation. sense, the term, "criminal conversaThe plaintiff alleged, in substance, tion," is synonymous with "adulthat the defendant debauched and tery;" but in its more limited and carnally knew her husband, thereby technical signification, in which it alienating his affections and depriv- is here to be consid Definition ing her of his comfort, society, and ered, it may be de- criminal support. The circuit court dis- fined as adultery in conversation. missed the petition, and the plain the aspect of a tort. A fundamentiff appeals. tal right which flows from the relaSo the only question presented tion of marriage, and one which the upon this appeal is this: Can a well-being of society requires should married woman maintain an action be maintained inviolate, is that of against another woman for having exclusive marital intercourse which criminal conversation with the each acquires with the other. From married woman's husband ? The this it follows that, whenever either common law unequivocally answered party commits adultery, he or she the question in the negative. 21 commits a trespass Cyc. 1627; 13 R. C. L. p. 1487. The upon the rights of Adultery-as trespass. question is, however, one of first the other; and from impression in this jurisdiction. time immemorial the law has given There can be no doubt about the the husband a right of action for wife's right to maintain an action damages against a Husband and for the alienation seducer of his wife-action Husband and wife-action of her husband's af- wife. But at comfor alienation of affections. fections; and that mon law the wife had no such right, right is thoroughly though in natural justice there recognized in this jurisdiction. seems to be no good reason why her Deitzman v. Mullin, 108 Ky. 610, right to maintain an action against 50 L.R.A. 808, 94 Am. St. Rep. 390, the seducer of her husband should 57 S. W. 247; Scott v. O'Brien, 129 not be as broad as his right of acKy. 1, 16 L.R.A.(N.S.) 742, 130 Am. tion against her seducer. If one St. Rep. 419, 110 S. W. 260; Merritt had the right to sue, one would natV. Cravens, 168 Ky. 155, L.R.A. urally say the other had the same 1917F, 935, 181 S. W. 970. And in right. But, as above stated, the Merritt v. Cravens, supra, which common law has never seen fit to acwas an action by the husband sole- cord the wife the redress which it ly for the alienation of his wife's af- accorded to the husband. All the fections, there is a dictum to the commentators upon the common effect that the law affords two law recognize the right of the husseparate and distinct remedies by band to maintain an action for crim. which "either spouse" may recover con. as exclusively the right of the for seduction. husband. In 3 Blackstone's Com. 3 to that effect, although in some jumentaries, *139, it is said: “Adul- risdictions, in which it was contery or criminal conversation with ceived that the denial of the right a man's wife, though it is, as a pub- to the wife rested principally upon lic crime, left by our laws to the co- the question of parties and proercion of the spiritual courts, yet, cedure, a different view has been considered as a civil injury (and taken since the adoption of the modsurely there can be no greater), the ern Married Women's Acts, aulaw gives a satisfaction to the hus- thorizing married women to sue band for it by action of trespass vi alone, and to own and control the reet armis against the adulterer, covery. The general line of reasonwherein the damages recovered are ing which denied the wife the right usually very large and exemplary." to maintain the action was stated in The reason for this distinction Doe v. Roe, 82 Me. 503, 8 L.R.A. against the wife rested, not so much 833, 17 Am. St. Rep. 499, 20 Atl. upon any principle of abstract right, 83, decided in 1890, as follows: as in the subservient relation which “The question is whether such an the wife occupied at the common action is maintainable. For such a law. The husband had a property in wrong the law does not leave the his wife's services, and it is upon injured wife without redress. She the loss of this that his right of re- may obtain a divorce and a restocovery was formerly placed. But, ration of all her property, real and the wife having no property right in personal, and in addition thereto the services of her husband, she alimony or an allowance out of her could not maintain the action. In 3 husband's estate. And the law will Blackstone's Commentaries, 143, punish the guilty parties criminally. the reason for this denial to an in- But does the law, in addition to ferior is stated as follows: “The these remedies, secure to her a inferior hath no kind of property in right of action to recover a pecunithe company, care, or assistance of ary compensation from her husthe superior, as the superior is held band's paramour? We think not. to have in those of the inferior, and We have been referred to no reliable therefore the inferior can suffer no authority for the existence of such loss or injury. The wife cannot re- a right, and we can find none. It is cover damages for beating her hus- true that a husband may maintain band, for she hath no separate in- an action for the seduction of his terest in anything during her cover- wife. But such an action has ture.” grounds on which to rest that canMoreover, at common law, in or- not be invoked in support of a simder for a wife to bring an action, her ilar action in favor of the wife. A husband must consent to and be wife's infidelity may impose upon joined as as a party plaintiff, and her husband the support of another whatever damages she might recov- man's child. And what is still er would immediately become his worse, it may throw suspicion upon property, since the law could not in- the legitimacy of his own children. dulge such an indecency as that a A husband's infidelity can inflict no man should so profit by his own such consequences upon his wife. wrong. 8 Am. & Eng. Enc. Law, 2d If she remains virtuous, no sused. 261. The rule is stated by picion can attach to the legitimacy Bouvier as follows: "The wife can- of her children. And an action in not maintain an action for criminal favor of the husband for the seducconversation with her husband; and tion of his wife has been regarded for this, among other reasons, be- as of doubtful expediency. It has cause her husband, who is particeps been abolished in England. criminis, must be joined with her as And the trials we have had in this plaintiff.” Dict. verb. “Crim. Con." country of such actions are not very The great weight of authority is encouraging. They seem to be bet(18% Ky. 65, 206 8. W. 23.) ter calculated to inflict pain upon the right to recover was based are the innocent members of the fami- well stated in Cooley on Torts, 224, lies of the parties than to secure and the principal elements were the redress to the persons injured. And disgrace which attached to the we fear such would be the result if plaintiff as the husband of the unsuch actions were maintainable by faithful wife, and no such disgrace wives. Such a power would furnish has ever rested upon the wife, if them with the means of inflicting there was one, of the guilty defenduntold misery upon others, with lit- ant, and, of more importance,tle hope of redress for themselves. the danger that a wife's infidelity At any rate, we are satisfied that the might not only impose on her huslaw never has, and does not now, se- band the support of children not his cure to wives such a power, and if own, but, still worse, cast discredit it is deemed wise that they should upon the legitimacy of those really have it, the legislature, and not the begotten by him. Because of these court, must give it to them." elements, the man was always conThe reasoning of this opinion clusively presumed to be the guilty Seems to rest upon the insubstantial party. In the eye of the law, the fedistinction that, because the law male could not even give her congives a right of action in such cases sent to the adulterous acts, and, as to the husband on account of his pos- a result, it was no defense in this sible greater injury, it should not form of action that the defendant give any redress to the wife for a had been enticed into criminal consimilar act, because her injury is of versation through the acts and pracless magnitude, and her right to sue tices of the woman. From this might be abused. Evidently, pur- statement as to the grounds or elesuant to a supposed public policy as ments constituting this action, it expressed in the foregoing opinion, will be seen that the principal ones the action for criminal conversation cannot possibly exist or be involved was abolished in England by § 59 of in a similar action brought by a the Matrimonial Causes Act 1857 wife. And what has been said (20 & 21 Vict. chap. 85). But that about the unavailability of the destatute provided that the husband, fense that the defendant himself in a proceeding for a dissolution of was the victim, and not the seducer, the marriage, or for a judicial sep- is suggestive of what the courts aration on the ground of the wife's might have to hold to be the rule of adultery, might claim and recover pleading, and what they might have damages from the corespondent; or to inquire into, upon the trial of an he might, by petition, claim dam- action of this kind. Would it be ages for adultery with his wife, held, following the old rule we have without demanding other relief. mentioned, and for which the reason Again, in Kroessin v. Keller, 60 seems well founded, that it was no Minn. 372, 27 L.R.A. 685, 51 Am. St. defense for the female sued to allege Rep. 533, 62 N. W. 438, decided in and prove that she was the party 1895, the supreme court of Minne- seduced, and that the greater wrong sota, in denying the right to the and injury had been inflicted upon wife to maintain an action for crim- her, not upon the plaintiff wife? inal conversation, stated the reason Or would the contrary rule prevail ? for the rule in the following lan- But we need not consider the subguage: ject further, for a moment's reflec"We are quite safe in saying that tion will suggest the remarkable reat common law no such action could sults flowing from the adoption of have been maintained. The injured either rule." husband alone brought crim. con., See also note to Nolin v. Pearson, and he could sustain the action by 6 Ann. Cas. 658. simply showing the adulterous Haynes v. Nowlin, 129 Ind. 81, tercourse. The grounds on which 14 L.R.A. 787, 28 Am. St. Rep. 213, 29 N. E. 389, is relied upon by appel- ancient doctrine may have been, wife could be maintained band by said acts of criminal con- against another woman for alienatversation. The court pointed out ing the affections of her husband by the fact that the gist of the action committing adultery with him; the was for the alienation of affections, court holding, in the first case above which is the loss of consortium- cited, that carnal knowledge of the that is, the loss of the conjugal fel- husband was as much a civil injury lowship, company, co-operation, and to the wife as carnal knowledge of aid of the husband, or wife; that the wife was a civil injury to the loss of consortium is the actionable husband. In Seaver v. Adams, 66 consequence of the injury, and that N. H. 142, 49 Am. St. Rep. 597, 19 alienation of affections is a matter Atl. 776, decided in 1889, the suof aggravation. And the court fur- preme court of New Hampshire held ther stated that, while it was neces that a married woman could mainsary to plaintiff's recovery in such tain an action against another an action that she should show that woman for seducing her husband. the defendant's misconduct was an In reaching that conclusion, howeffective cause of the loss of consor ever, the court rested its departure tium, it was not necessary that it from the common-law rule upon the should have been the sole cause, and fact that the tendency of modern that any unhappy relations which legislation in that state had been to may have existed between the plain- put the husband and wife upon an tiff and her husband, not caused by exact equality exact equality before the law, the conduct of the defendant, might whereby the common-law rule of affect the question of damages, al servitude in marriage had been rethough they would be in no sense a pealed, so that the husband and wife justification or palliation of defend- now stand upon an equality of right ant's conduct. And, although the in respect to property, torts, and court rested the plaintiff's right to contracts, subject only to certain exmaintain her action upon the para ceptions limiting the liability of the graphs of the petition which sought wife upon certain contracts and damages for the alienation of her covenants specified in the statute. husband's affections, it went fur In view of the statute giving the ther, and also sustained her right wife the right to sue in her own under the third paragraph for crim- name, it was held that the former inal conversation. Upon this latter barbarous common-law fiction that subject the court said: “While the her legal existence became susinjurious consequences of a wife's pended during the marriage, and adultery may be more far-reaching was merged into that of her husbecause of probable difficulties and band, had ceased by reason of the embarrassments in respect of the Married Women's Act of that state, legitimacy of children, her conjugal and that no reason in natural jusrights are in principle the same, tice existed why the right of the substantially, as his. Whatever the wife to maintain an action against |
