CHAPTER X. CRIMINAL CONVERSATION, ALIENATION OF AFFECTION, AND ENTICING AWAY WIFE OR HUSBAND. ARTICLE I. Definitions and distinctions II. Remedies PAGE. 336 340 III. Criminal conversation; elements of the wrong. 342 the wrong VI. Defenses VII. Pleading 348 351 354 360 367 369 An action for criminal conversation is an action for a personal injury. Bennett v. Bennett, 116 N. Y. 584. In Baker v. Baker, 16 Abb. N. C. 293, the court held that an action for enticing away or criminal conversation was an action for injury to the person. 66 Criminal conversation is included under the term personal injuries." Code, § 3343, subd. 9. Speaking of the husband's marital rights at common law and his action for injury thereto, the court, in Van Arnam v. Ayres, 67 Barb. 545, says: "The husband at common law was entitled to the services of the wife and the comfort of her society, and any Art. 1. Definitions and Distinctions. wrongful interference gave him a right of action. He might have a right of action for criminal conversation; for abduction; for enticing or harboring her. She was not supposed capable of consenting in either of these cases." The court denies the corresponding right on behalf of the wife, but was overruled in this respect by Baker v. Baker, 16 Abb. N. C. 293. See 116 N. Y. 587, supra. It is thus seen that there may be several wrongs to marital rights - that is to say-adultery; abduction; enticing away, or harboring, or injury to the consortium, the right to comfort, aid, and affection. Speaking of the grounds for action, founded upon injury to the marital rights, Cooley on Torts (224), states that the grounds of such action is the infliction upon the husband of some one or more of the following injuries: (1) Dishonor of the marriage bed. (2) Loss of the wife's affections. (3) Loss of the comfort and wife's society. (4) Total loss of wife's services where she absconds from the husband, and probably the diminished value of services where she does not. (5) The mortification and sense of shame that most generally accompany this most serious of domestic wrongs." SUBDIVISION 2. The Wrongs Distinguished. Though the actions for enticing away and criminal conversation are frequently treated as one action, yet there is a vital difference between the two, as shown by the decision in Schnell v. Blohm, 40 Hun, 378, which held that the action for criminal conversation would lie, even though the plaintiff had previously prosecuted the defendant for enticing away his wife and had recovered judgment therefor. It will be noted that the criminal conversation seems to have been committed subsequent to the enticing away. Upon this point the court said: "The enticement of a man's wife from him, and from her home and child, is a wrong of sufficient magnitude, but a fresh sting is imparted to the injury when the seducer, in the face of the world, commences an adulterous intercourse. For that new and increased wrong another action may be commenced and another judgment recovery. (3 Bl. Comm. 139.) Even if the plaintiff's former recovery had been for the seduction and debauchery of his wife, he could Art. 1. Definitions and Distinctions. still maintain this action; for every moment that the wife continues absent from her husband without justifiable cause, without his consent, is a new tort, and every one who persuades her to do so does a new injury and cannot but know it.' (Hutcheson v. Peck, 5 Johns. 205.) The defendant injures the plaintiff anew everyday he maintains the unlawful and adulterous intercourse with his wife, and so furnishes a fresh cause of action to the plaintiff with each recurring day." See the distinction between an action for enticing away and harboring the wife or husband, and the action for criminal conversation, in note to Buckel v. Suss, 28 Abb. N. C. 25, 18 N. Y. Supp. 719, affirmed on opinion below, 21 N. Y. Supp. 907. A husband or wife may be said to have at least three marital rights; (1) to faithfulness; (2) to affection; and (3) to society. It follows that any infringement of one or more of these three rights gives rise to a cause of action, and so the actions arising out of marital rights naturally fall into three classes, viz.: (1) Criminal conversation, strictly so-called; (2) alienation of affection; (3) abduction or enticing away, by which the society of the spouse is lost. It will be seen at once that as a matter of actual fact any particular case will generally combine two or more of these distinct wrongs. However, the elements necessary to constitute each wrong, standing alone, are considered in the following pages. But it should always be borne in mind that in practical litigation the wrongs are generally combined. See, however, Hollister v. Valentine, 69 App. Div. 582, 75 N. Y. Supp. 115. SUBDIVISION 3. Historical, Wife's Common-law Disability Removed. Injuries that may be offered to a person, considered as a husband, are principally three: Abduction, or taking away a man's wife; adultery, or criminal conversation with her; and beating or otherwise abusing her. (1) As to the first sort, abduction or taking her away, this may either be by fraud and persuasion, or open violence; though the law in both cases supposes force and constraint, the wife having no power to consent; and, therefore, gives a remedy by writ of ravishment or action of trespass vi et armis, de uxore rapta et abducta. And the husband is entitled to recover damages in an action on the case against such as per * * * Art. 1. Definitions and Distinctions. suade or entice the wife to live separate from him without a sufficient cause. The old law was so strict in this point, that if one's wife missed her way upon the road, it was not lawful for another man to take her into his house, unless she was benighted and in danger of being lost or drowned; but a stranger might carry her behind him on horseback to market or to a justice of the peace for a warrant against her husband, or to the spiritual court to sue for a divorce. 3 Bl. Comm. 139. The common-law inability of the wife to bring an action for loss of consortium or alienation of affection is discussed in Jaynes v. Jaynes, 39 Hun, 40, where it is said that at common law the husband and wife were regarded as one person, and thus she could bring no action for redress for injury to person or property without her husband's concurrence. Her only remedies were to sue in the ecclesiastical courts for a restitution of conjugal rights (3 Bl. Comm. 94), or, in a proper case, to proceed under the statute for a limited separation (2 R. S. 147, § 51, subd. 3), or to have her husband dealt with as a disorderly person. (1 R. S. 638.) Further, the court says: "That her disability in this respect has been removed by legislation, and holds that such action must be regarded as her separate and sole property." " The right of action on part of the wife was finally established in Bennett v. Bennett, 116 N. Y. 584, overruling Van Arnam v. Ayres, 67 Barb. 544. The statute which enables a married woman to sue, as if sole, removed the disability which existed at common law as to actions against a third person for enticing away her husband, or depriving her of the comforts of his society. Baker v. Baker, 16 Abb. N. C. 293, overruling and disregarding Lynch v. Knight, 9 H. of L. Cas. 577; Van Arnam v. Ayres, 67 Barb. 544. A wife at present is entitled to maintain an action against one who has enticed away her husband and alienated his affections. She may maintain the action in her own name. Manwarren v. Mason, 79 Hun, 592, 61 St. Rep. 533, 29 N. Y. Supp. 915. An action by the wife lies for the alienation of affection, although her husband continues to live with her. Van Olinda v. Hall, 88 Hun, 452, 66 St. Rep. 711, 34 N. Y. Supp. 777; Breiman v. Pasch, 7 Abb. N. C. 249; Warner v. Miller, 17 Abb. N. C. 221. In Hodecker v. Strickler, 20 App. Div. 245, 46 N. Y. Supp. Art. 2. Remedies. 808, affirming and adopting opinion below, 39 N. Y. Supp. 515, the plaintiff, a married woman, brought an action against another woman, with whom her husband was living, seeking to restrain said defendant from holding herself out as the husband's lawful wife. It was held that the complaint did not state a cause of action, nor did the facts alleged constitute the crime of false representations under section 562 of Penal Code. The complaint did not allege pecuniary damage, but it alleged that the plaintiff had been scandalized, defamed, and humiliated, etc. Adultery at common law is not an indictable offense, unless it was so open and notorious as to be a public nuisance. 1 Bishop on Criminal Law, §§ 39, 35, 501. In the United States adultery is not an indictable offense unless made a crime by statute. Such statutes exist in some States, but there is no such statute in New York. Of course, if the criminal conversation amounts to rape it would be punishable as a crime under section 278 of the Penal Code. If the enticing away amounts to kidnapping, as defined in section 211 of Penal Code, it may be punished as a crime under such section. SUBDIVISION 2. Habeas Corpus. If the plaintiff's husband or wife, being enticed away, is imprisoned or restrained of his liberty, there is a remedy by habeas corpus under Code Civil Procedure, § 2015 et seq. For a full treatment of Habeas Corpus, see 1 Fiero on Special Proceedings (2d ed.), 57 et seq. |