45 N.W. 522 (Wis. 1890), Duffies v. Duffies

• Citation: 45 N.W. 522, 76 Wis. 374
• Opinion Judge: ORTON, J.
• Party Name: DUFFIES, Respondent, v. DUFFIES, Appellant
• Attorney: For the appellant there was a brief by Van Dyke & Van Dyke, and oral argument by G. D. Van Dyke. For the respondent there was a brief by Williams, Friend & Bright, and oral argument by A. H. Bright.
• Judge Panel: HARLOW S. ORTON, J. JOHN B. CASSODAY, J., dissented CASSODAY
• Case Date: April 08, 1890
• Court: Wisconsin Supreme Court

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45 N.W. 522 (Wis. 1890)

76 Wis. 374

DUFFIES, Respondent,

v.

DUFFIES, Appellant

Supreme Court of Wisconsin

April 8, 1890

Argued March 1, 1890

APPEAL from the Superior Court of Milwaukee County.

The case is stated in the opinion.

Reversed and cause remanded.

For the appellant there was a brief by Van Dyke & Van Dyke, and oral argument by G. D. Van Dyke.

For the respondent there was a brief by Williams, Friend & Bright, and oral argument by A. H. Bright.

HARLOW S. ORTON, J. JOHN B. CASSODAY, J., dissented

OPINION

ORTON, J.

This action is brought by the plaintiff, as the wife of one Frank W. Duffies, against the defendant, the mother of sad Frank, to recover damages by reason of the defendant having wrongfully induced, persuaded, and caused the said Frank W. Duffies to refuse further to live and cohabit with the plaintiff and to support and maintain her and to support and maintain their child, and maliciously enticed him away from her, intending thereby to deprive her of his society and support, maintenance, aid, and assistance. The action was tried, and the plaintiff recovered, by the verdict of the jury, $ 2,000, of which the plaintiff remitted $ 1,000, and judgment was rendered for the residue thereof. Errors are assigned for admitting irrelevant testimony, refusing to submit certain questions to the jury and to give certain instructions, and for denying motions for nonsuit and for a new trial, but they will not be considered any further than some of them may involve the question whether the action itself will lie.

The learned counsel of the appellant, before the trial was commenced, objected to the introduction of any evidence [76 Wis. 375] under the complaint, on the ground that it stated no cause of action, which objection was overruled. On this demurrer, ore tenus, the learned counsel contended that this action would not lie at common law, and that there is no statute allowing it. From the examination of the authorities we have been able to make, and considering the reason thereof, we have concluded that such contention is correct, and that the action cannot be maintained.

The learned counsel of the respondent contends that the action lies (1) at the common law; and (2) by the terms and liberal interpretation of our statutes;

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and (3) by analogy to similar cases. The learned counsel does not contend that any such action was ever maintained at the common law, but that by the principles of the common law, and in analogy to similar actions at the common law, the right of action existed, and was not maintainable only on account of the wife's disability to bring the action. But the wife was not only unable to bring the action to recover damages for the loss of her husband's society, but the damages themselves were the property of the husband, the same as in case of personal injury, or for defamation, even before marriage. Gibson v. Gibson, 43 Wis. 23; Barnes v. Martin, 15 Wis. 240. How can she be said to have had a right of action to recover damages which she could neither own nor enjoy. More properly the right of action was in the husband, in the interest or on account of his wife. The common law could not recognize a right of action in the wife to sue for the loss of her husband's society, without involving the absurdity that the husband might also sue for such a cause. The wife having no right of property, at common law, in any damages recovered on her account for any cause, neither could she have any right of action to recover them. This may have been grossly wrong, but such was the theory of the common law, and, to make it consistent, the wife had no such right of action. The wife was not only inferior to [76 Wis. 376] the husband, but she had no personal identity separate from her husband. It is not proper to say that the common law was inconsistent in denying to the wife the right to bring such an action, and at the same time allowing the husband to sue for the loss of the society of his wife. Her disability in this respect was consistent with all of her other disabilities.

When the learned counsel cites the case of Winsmore v. Greenbank, Willes, 581, decided in the 19th year of George the Third, in which the husband sued for enticing away his wife, per quod amisit the comfort and society of his wife, as furnishing the same reason for the wife bringing such an action, he ignores all these common-law disabilities of the wife, which are consistent with each other. Chief Justice WILLES admitted that there was no precedent for such an action, but, as the action on the case had been invented for similar cases, he claimed that this was only another case with new facts, and as there were "injury and damage," and the violation of a right, and the action ought to lie, it would lie within the reason of other cases. And so the learned counsel argues from Philp v. Squire, Peake, 82, in the 31st year of George the Third, in which Lord KENYON held that the action by the husband was not for the loss of the services of the wife, but of her society.

In Pasley v. Freeman, 3 Term. R. 51, the action was for making a false affirmation with intent to defraud. Lord KENYON held that the action would lie, although a new case, because there was damnum cum injuria. In Ashby v. White, 2 Ld. Raym. 938, decided in 1701, the action was against an officer for refusing to receive the plaintiff's vote. It was a case primae impressionins but Chief Justice HOLT, against the other judges, held that the action would lie at common law, on the ground that where there is a wrong there should be a remedy. In Chapman v. Pickersgill, 2 Wils. 145, the action was for falsely and maliciously suing out a bankrupt [76 Wis. 377] commission, and it was held that the action would lie at common law on the same ground. In Lumley v. Gye, 2 El. & Bl. 216, the action was for enticing away a singer employed to sing in a theater, and in Bowen v. Hall, L. R. 6 Q. B. Div. 333, for enticing away a common laborer employed by the plaintiff.

These are all new cases predicated upon the same general principles of the common law. The argument is, if these actions can be sustained, and the action of the husband for the loss of his wife's consortium, why may not an action by or on behalf of the wife, for the loss of her husband's society, support, and protection, be maintained on the same principles? The reason is obvious and suggested above. The wife had no property in the consortium of her husband that is lost, nor any right to it that has been violated at common law. If the same able judges who were free to invent actions and to sustain new cases in an old action, and were quick to see the justice and humanity of all cases, could have found a right of action of the wife in such a case, we may believe that old forms and fictions would not have stood in the way. Her relative position and conditions as a wife at common law precluded the recognition of any such right of action. Under the civil law the husband and wife were distinct persons. The wife had a separate estate, the right to contract debts, and to bring actions for injuries. Her position was so nearly equal to that of her husband that her right to his society was recognized, and she had a remedy for its loss. But that remedy was confined to the ecclesiastical courts, and consisted only in having her husband returned to her. 1 Bl. Comm. 444. The wife had a right of action for defamation, by the civil law, but it was denied her in the common-law courts, because she would then have two actions or a double remedy. Palmer v. Thorpe, 4 Coke, 19; Byron v. Emes, 12 Mod. 106, 2 Salk. 694. Another reason was that an action for defamation [76 Wis. 378] would not lie without special damages, and the wife could have no special damages.

In looking into the books of the common law we can find no such action or right of action of the wife, and they are both denied on principle as well as want of precedent. In the genial light of modern times, the true situation and position of the wife in the marriage relation are seen more clearly than formerly, and the place assigned her by the law and by common consent is much higher and more suitable to her intrinsic character, ability, and worth. She is placed on a nearer equality with her husband in her rights of person, property, and character. Under the just and genial laws of married women, she has resumed her position of a feme sole, as nearly as is compatible with natural law. It is not, therefore, surprising that so great and gallant, learned and humane, a judge and chancellor as Lord

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CAMPBELL should hold in Lynch v. Knight, 9 H. L. Cas. 577, that the wife had the same right to the consortium of her husband that he had to hers, and might allege special damage for its loss, caused by defamation of her character. The Lord Chancellor said that it was a case of first impression, and rested his opinion upon the great changes that had taken place in the position and relations of the wife under modern legislation. The opinion is by no means positive, and placed the right on the condition that it might be shown that the wife's "loss and injury" concurred. But the opinion is obiter in that case, and off-hand, and can hardly be accepted as authority. But the remedy of the wife...