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(182 Ky. 65, 206 8. W. 23.) the seductress of her husband husband, the remedy should be the should not be coextensive with his same.” right of action against her seducer. The late case of Rott v. Goehring,
In 8 Am. & Eng. Enc. Law, 2d ed. 33 N. D. 413, L.R.A.1916E, 1086, 262, it is said: “The tendency of Ann. Cas. 1918A, 643, 157 N. W. modern thought is to abrogate the 294, decided in 1916, is interesting idea of superior and inferior from as illustrative of the modern tendthe relation of husband and wife ency to abolish the distinction beand as, under the statutes which tween the wife's right to bring an have in recent years been passed in action for the alienation of her husthe various states, married women band's affections and for criminal are permitted to sue independently conversation. In that case the suof their husbands and to hold sep. preme court of North Dakota said arate property, the reasons for the it was immaterial, under the statute distinction would seem no longer to abolishing forms of action, whether be tenable, and it has been held the action was one for alienation of that under such statutes a married affections alone, or was for both woman may maintain an action alienation of affections and criminal for criminal conversation"-citing conversation, and that, if the facts Foot v. Card, 58 Conn. 1, 6 L.R.A. alleged in the petition, when prop829, 18 Am. St. Rep. 258, 18 Atl. erly established, entitled the plain1027; Seaver V. Adams, 66 N. H. tiff to any relief under the law, she 142, 49 Am. St. Rep. 597, 19 Atl. might recover. Having reached the 776. See also Westlake v. Westlake, conclusion that the plaintiff had sus34 Ohio St. 621, 32 Am. Rep. 397; tained her cause of action for the Clow v. Chapman, 125 Mo. 101, 26 alienation of her husband's affecL.R.A. 412, 46 Am. St. Rep. 468, 28 tions, the court concluded as folS. W. 328.
lows: "Having reached the above The modern rule is well stated by conclusion, it is immaterial to plainthe court of appeals of New York in tiff's recovery whether the comBennett v. Bennett, 116 N. Y. 584, 6 plaint also states a cause of action L.R.A. 553, 23 N. E. 17: "The ac- for criminal conversation, and also tual injury to the wife from the loss as to whether the latter kind of acof consortium, which is the basis of tion will lie in this state at the suit the action, is the same as the actual of the wife. We shall, therefore, reinjury to the husband from that frain from deciding this question; cause. His right to the conjugal so- but the following authorities susciety of his wife is no greater than taining such an action may be of her right to the conjugal society of interest to the legal profession. her husband. Marriage gives to They also lend support to our views each the same rights in that regard. above expressed: 8 Am. & Eng. Each is entitled to the comfort, com- Enc. Law, 2d ed. 261; Seaver v. panionship and affection of the Adams, 66 N. H. 142, 49 Am. St. other. The rights of the one and Rep. 597, 19 Atl. 776; Dodge v. the obligations of the other spring Rush, 28 App. D. C. 149, 8 Ann. Cas. from the marriage contract, are mu- 671." tual in character, and attach to the The Married Women's Act of 1894 husband as husband and to the wife (Acts 1894, chap. 76; Ky. Stat. $ as wife.
Any interference with 2128) removes one of the commonthese rights, whether of the hus- law objections to the wife's right to band or of the wife, is a violation, maintain an action for criminal connot only of a natural right, but also versation by empowering her to sue, of a legal right, arising out of the as a single woman, for the protecmarriage relation.
As the tion of her rights without the conwrongs of the wife are the same in sent of her husband; and we are not principle, and are caused by acts of much impressed with the remaining the same nature, as those of the ground of the argument based upon
a supposed public policy. The pub- tate, to the rents and profits of her lic policy of a state is expressed in realty, to her earnings and labor; its Constitution and statutes, and in and the power of the control of the its common law as found in the opin- wife by the husband was caused to ions of its court of last resort. Gath- such an extent as to vest in him the right v. H. M. Byllesby & Co. 154 right to use such forcible means as Ky. 106, 157 S. W. 45. But in none would bridle her tongue or make of these ways has this common- her of good behavior. This rule is wealth heretofore declared its pub- a harsh one at best, and with the lic policy upon this question; and, progress of civilization, and the this being the first opportunity this changes by wise, modern legislation court has had of passing upon it, the of the relation between husband and question is to be decided upon sound wife as to the right of property and principles and authority. If suits of personal control by the husband, it this character upon the wife's part would seem absurd in this enlightwould tend to raise family dissen- ened age to regard the wife as a sions and neighborhood scandals, mere machine, made to labor and to the same result would be obtained in talk as the husband directs, and to case the husband brings such an ac- make him liable on that ground for tion; and, as above stated, the fact her torts when not committed by that the husband's injury by the in- his direction or procurement.' fidelity of his spouse may be of the And in that opinion, after pointgreater and more serious character ing out that, under our Married is no answer to the claim upon the Women's Act of 1894, the commonpart of the wife to maintain a sim- law unity of husband and wife had ilar action for a less injury. If she been destroyed, Chief Justice Pryor is injured at all in such a case (and paraphrastically quoted from Marno one will deny it), she should have tin v. Robson, 65 Ill. 129, 16 Am. the right to maintain her action Rep. 578, as follows: "The legal therefor, and the verdict be meas- supremacy of the husband is gone ured accordingly. But to say that and the scepter departed from him. the husband has a right to maintain The wife has the legal right and asan action against his wife's para- pires to battle with him in the conmour, and that she should not have a tests of the forum, to outvie him in like right of action against his the healing art, to climb with him paramour, is to wholly destroy that the steps of fame, and share with equality of right which is the boast him in every occupation. Her brain of our institutions.
and hands and tongue are her own, It is well known that under the and she should alone be responsible common law the husband was re- for slanders uttered by herself.” sponsible for the wife's slander, The reasoning in Deitzman v. upon the supposition that he con- Mullin, 108 Ky. 610, 50 L.R.A. 808, trolled her actions in that respect. 94 Am. St. Rep. 390, 57 S. W. 247; But this theory was evidently incor- and Haynes v. Nowlin, 129 Ind. 581, rect when applied to modern condi- 14 L.R.A. 787, 28 Am. St. Rep. 213, tions, and in Lane v. Bryant, 100 29 N. E. 389, points to the same conKy. 138, 36 L.R.A. 709, 37 S. W. 584, clusion. See also Schuler v. Henry, this court so held, and refused to be 42 Colo. 377, 14 L.R.A.(N.S.) 1013, bound by the legal fiction that the
94 Pac. 360. husband could control his wife's
We are therefore of opinion that, tongue. In the course of that opin- although the common-law rule preion this court said: “The liability vented the wife of the husband at the common law
from bringing an conversationwas based on the idea of his abso- action for criminal
action by wife. lute dominion over the person of his conversation, it is no longer appliwife, with the right to all of her
right to all of her cable under our present statute, personal and the use of her real es- which places the wife upon an equal (182 Ky. 65, 206 8. W. 23.) footing with the husband as to her manded, with instructions to overright to sue, for the purpose of pro- rule the demurrer to the petition as tecting and enforcing her rights of amended, and for further proceedevery kind and character.
ings consistent with this opinion. Judgment reversed, and action re- Settle, Ch. J., not sitting.
Wife's right of action for criminal conversation.
of the ordinary disabilities of coverThe rule in the majority of juris- ture.... While the injurious condictions is that a wife has a right of sequences of a wife's adultery may be action for criminal conversation.
more far-reaching because of the United States.-See Ash v. Prunier legitimacy of children, her conjugal (1901) 44 C. C. A. 675, 105 Fed. 722. rights are in principle the same, subAlabama. Parker v. Newman
stantially, as his. Whatever the an(1917) — Ala. 75 So. 479.
cient doctrine may have been, modern Connecticut.--Foot v. Card (1889) morals and law recognize the equal 58 Conn. 1, 6 L.R.A. 829, 18 Am. St. obligation and right of husband and Rep. 258, 18 Atl. 1027.
wife. Nor can the consent of either District of Columbia.—Dodge V. to his or her defilement affect the Rush (1906) 28 App. D. C. 149, 8 Ann, right of action of the injured spouse Cas. 671.
against the other wrongdoer." Kentucky. See Deitzman v. Mullin In Parker v. Newman (Ala.) supra, (1900) 108 Ky. 610, 50 L.R.A. 808, 94 the court held that under the statute Am. St. Rep. 390, 57 S. W. 247; Scott v. enabling married women to sue for O'Brien (1908) 129 Ky. 1, 130 Am. St. personal injuries (Code, $$ 4489-4493) Rep. 419, 16 L.R.A.(N.S.) 742, 110 S. a wife has the right to sue for crimiW. 260. See also the reported case nal conversation with her husband. (TURNER V. HEAVRIN, ante, 562).
In the reported case (TURNER V. Massachusetts.-Nolin v. Pearson HEAVRIN) it is held that, under a stat(1906) 191 Mass. 283, 4 L.R.A.(N.S.) ute (Married Woman's Act, 1894, Ky. 643, 77 N. E. 890, 6 Ann. Cas. 658. Stat. chap. 76, § 2128), the common
New Hampshire.-Seaver v. Adams law rule preventing the wife from (1889) 66 N. H. 142, 49 Am. St. Rep. bringing an action for criminal con797, 19 Atl. 776.
versation is no longer applicable, and New York. Breiman V. Paasch the wife is now placed on an equal (1879) 7 Abb. N. C. 249: Churchill v. footing with the husband, and may Lewis (1886) 17 Abb. N. C. 226.
maintain an action for the injury North Dakota.-Rott v. Goehring caused by criminal conversation with (1916) 33 N. D. 413, L.R.A.1916E, the husband. 1086, 157 N. W. 294, Ann. Cas. 1918A, In Rott v. Goehring (N. D.) supra, 643.
wherein the complainant wife charged Vermont.—See Frederick v. Morse the defendant with enticing her hus(1912) 88 Vt. 126, 92 Atl. 16.
band to sexual intercourse, the court In Dodge v. Rush (D. C.) supra, the held that the wife could maintain the court held that a wife has the right to action, and that it did not matter sue for criminal conversation with her whether the complaint set forth a husband, saying: “The underlying cause of action for alienation of af. ground of the common-law rule of dis- fections or for criminal conversation, crimination between husband and wife forms of action being abolished in respect of this right, namely, the (Comp. Laws, 8 7355). incapacity of the wife to maintain So in Foot v. Card (Conn.) supra, a separate action for a tort, has been wherein it appeared that the defendswept away by the modern legislation ant had been living in adultery with that has so generally relieved the wife the plaintiff's husband, the court held
that the injured wife could maintain wilfully, or even negligently, inflicted, an action to recover damages for the and causing loss and damage, there alienation of her husband's affections is a remedy. That is so with us, even and for criminal conversation, saying: if the party injured be a married wom"Inasmuch as by universal consent it an. Many of the disabilities imposed is of the essence of every marriage on her by the common law have been contract that the parties thereto shall, shaken off, and she may now sue and in regard to this particular matter be sued without the consent of her of conjugal society and affection, husband, and without his being a par
, stand upon an equality, we are unable ty to the record.” to find any support for the denial in In Churchill v. Lewis (1886) 17 Abb. this reason [inferiority of the wife] N. C. (N. Y.) 226, the court held that and, the right, the injury, and the con
an action would lie by a wife against sequent damage being admitted, then a woman who seduced her husband, comes into operation another rule,
and induced him to have sexual internamely, that the law will permit no
course with her. It does not clearly one to obtain redress for wrong except
appear whether the action was brought
by the wife for criminal conversation by its instrumentality, and it will fur
or for alienation of affections. nish a mode for obtaining adequate redress for every wrong. This rule,
But in Romaine v. Decker (1896) 11
App. Div. 20, 43 N. Y. Supp. 79, the lying at the foundation of all law, is
court said, by way of dictum: “We more potent than and takes preced
will concede, at least for the purposes ence of the reason that the wife is, in
of the discussion, that a wife cannot this regard, without the pale of the law because of her inferiority."
maintain an action against another In Nolin v. Pearson (Mass.) supra,
woman because merely of her having
had carnal intercourse with her huswherein it appeared that the defend
band; in other words, an action for ant had committed various acts of
criminal conversation pure and simadultery with the plaintiff's husband,
ple.” In that case the action was the court held that the plaintiff could
brought by the wife for damages, for maintain the action, applying a stat
the enticement of her husband away ute (Rev. Laws, chap. 212, § 10, chap.
from her by adulterous acts. 215, § 1) which permits a recovery
So, in Strock v. Russell (1911) 148 by a married woman "for damages
App. Div. 483, 132 N. Y. Supp. 968, an which flow from a wrong suffered
action by a wife, charging the defendfrom a violation of personal rights."
ant with having alienated the affecIt was held that, the consortium and
tions of her husband by having adul. exclusive access to the spouse being
terous intercourse with him, the court a personal right of a wife, she might
said obiter: "By $ 831 of the Code recover for the violation thereof.
of Civil Procedure it is provided that In Seaver v. Adams (1889) 66 N. H.
in an action for criminal conversation 142, 49 Am. St. Rep. 797, 19 Atl. 776,
the plaintiff's wife is not a competent it was held that a married woman had
witness for the plaintiff, but she is a a right of action against one who se
competent witness for the defendant duced her husband, the court saying:
as to any matter in controversy, except “To entice away or corrupt the mind
as to the disclosure of confidential and affection of one's consort is a civil wrong, for which the offender is
communications. The purpose of this liable to the injured husband or wife.”
exclusion would seem to be to prevent In Breiman v. Paasch (1879) 7 Abb.
collusion between husband and wife. N. C. (N. Y.) 249, the first case in
If such be the purpose of the section, New York to consider this subject, the
it is difficult to understand why the court held that a wife could maintai
husband also should not be disqualian action against the paramour of her fied to testify in behalf of the wife in husband, for seducing him. The court such an action, if such an action will said: “This is a special action on the lie in behalf of the wife. Is not this case for a wrong; and for every wrong section in fact a legislative declara
tion of the law that such an action pensation in damages, for the loss of will not lie in behalf of the wife? In the society, comforts, and assistance an action by the husband against an- of his wife, in consequence of the adulother man, the mere act of adulterous tery. The right to maintain an action intercourse raises a presumption that against an adulterer belongs only to the defendant induced the wife to such the husband." Lellis v. Lambert an act. No such inference could be (1895) 24 Ont. App. Rep. 653. indulged in an action by the wife In Hodge v. Wetzler (1903) 69 N. J. against another woman, for having L. 490, 55 Atl. 49, it was held that neihad adulterous relations with her hus- ther at common law nor under the band. But it is unnecessary to decide statute in New Jersey (Gen. Stat. pp. this question in this case.'
2012, 2536) could a wife maintain an In Scott v. O'Brien (1908) 129 Ky. action against one committing adul1, 16 L.R.A.(N.S.) 742, 130 Am. St. tery with her husband, holding that Rep. 419, 110 S. W. 260, an action for the Married Women's Enabling Acts, alienation of affections, the court being in derogation of the common intimated an opinion that a wife could law, must be construed strictly, and maintain an action for criminal conver- that by such a construction it was apsation. See, to the same effect, Deitz- parent that the statute was not deman v. Mullin (1900) 108 Ky. 610, 50 signed to create a new cause of action L.R.A. 808, 94 Am. St. Rep. 390, 57 S. in favor of a wife, for criminal conW. 247.
versation. In Ash v. Prunier (1901) 44 C. C. A. In Doe v. Roe (Me.) supra, it was 675, 105 Fed. 722, the court enter- held that a wife could not maintain tained an action on the part of a wife an action against one for carnally to recover damages for the seduction knowing and debauching her husband, of her husband, no question of the the court saying: “It is true that a wife's right to bring the action having husband may maintain an action for been raised.
the seduction of his wife. But such So, in Frederick v. Morse (1912) 88 an action has grounds on which to Vt. 126, 92 Atl. 16, no question was rest that cannot be invoked in support raised as to the right of the plaintiff of a similar action in favor of the wife to maintain an action for dam- wife. A wife's infidelity may impose ages for criminal conversation.
upon her husband the support of anMinority rule.
other man's child. And what is still In Canada and a few of the Ameri. worse, it may throw suspicion upon can states, the rule is that a wife can- the legitimacy of his own children. A not maintain an action for criminal
husband's infidelity can inflict no such conversation. Doe v. Roe (1890) 82
consequences upon his wife. If she Me. 503, 8 L.R.A. 833, 17 Am. St. Rep.
remains virtuous, no suspicion can 499, 20 Atl. 83; Kroessin v. Keller
attach to the legitimacy of her chil. (1895) 60 Minn. 372, 27 L.R.A. 685, dren." 51 Am. St. Rep. 533, 62 N. W. 438; In Kroessin v. Keller (1895) 60 Hodge v. Wetzler (1903) 69 N. J. L.
Minn. 372, 27 L.R.A. 685, 51 Am. St. 490, 55 Atl. 49; Lellis v. Lambert
Rep. 533, 62 N. W. 438, the court held (1895) 24 Ont. App. Rep. 653; Lawry that a wife could not maintain an acv. Lawry (1901) 2 Ont. L. Rep. 162; tion for criminal conversation with Weston v. Perry (1909) 14 Ont. Week. her husband, where no allegation or Rep. 956.
proof was made that the defendant, by Thus, it has been said in the leading the adulterous acts, deprived the Canadian case on this subject: plaintiff of the consortium, support, "Adultery at the present day, as far
and affection of her husband. The as respects the temporal courts, is con- court said: “It is to be noticed here sidered merely as a civil injury; and that it is not alleged that the defendthe only remedy which the law affords ant was the seducer of the husband, is an action whereby the husband may or that plaintiff has been deprived of recover against the adulterer a com- his support; nor is it an action for