Gross v. Gross
| Decision Date | 06 February 1912 |
| Citation | 73 S.E. 961,70 W.Va. 317 |
| Parties | GROSS v. GROSS. |
| Court | West Virginia Supreme Court |
Submitted January 31, 1911.
Rehearing Denied March 12, 1912.
Syllabus by the Court.
A vacation order of a judge certifies the presentation to him of bills of exception and a transcript of all the evidence and certifies that for identification the bills were numbered as bills of exception by a number to each, and that the certificate of evidence was marked "Certificate of Evidence," and certifies that the bills were signed, and that the certificate of evidence was also signed by the judge, and the order says that bills and certificates were ordered to be made a part of the record. The bills refer to the "Certificate of Evidence" as part of them. The "Certificate of Evidence" is part of the record and brings the evidence before this court.
A wife though the husband be living, has the right of action in her sole name for wrongful alienation of her husband's affection, causing his separation from her.
A father is liable to his son's wife for alienating the affection of the son from his wife, and causing him to separate from her, if the father is moved by malice towards the wife and without good faith and honest purpose and good motive for the welfare of his son. If his action is without malice, and springs only from what he honestly believes to be necessary for the welfare of his son, he is not liable; and the presumption is that he acts without malice and with such good motive until the contrary appears, and the burden is on the wife to show malice and absence of such good motive.
Error to Circuit Court, Randolph County.
Action by Frances Dent Gross against Cecil Gross. Judgment for plaintiff, and defendant brings error. Affirmed.
W. B Maxwell, D. H. Hill Arnold, and W. E. R. Byrne, for plaintiff in error.
Fred O Blue, Arthur D. Dayton, and W. E. Baker, for defendant in error.
BRANNON, P.
Frances Dent Gross brought an action of trespass on the case in the circuit court of Randolph county against her father-in-law, Cecil Gross, charging him with having alienated the affection of her husband, Ivan Victor Gross, and inducing him to separate from her, and she recovered a verdict and judgment for $12,500, and Cecil Gross comes to this court for relief.
It is contended that no bill of exceptions brings the evidence before us so that we can review the case. The order of the judge says that the defendant presented 15 bills of exception and also a transcript of all the evidence, and for their identification numbers the bills, and states that the transcript is marked "Certificate of Evidence," and orders that bills and said "Certificate of Evidence" be made part of the record. This certificate of evidence, so marked, is found in the record, and bills of exception, about which as parts of the record no question can be made, refer to it as "Certificate of Evidence." Thus this evidence has a distinct earmark of identification in the order of the judge and in bills of exception, so that there can be no difficulty in finding it. The point is technical and unsubstantial, too much so to shut a suitor out of court. State v. Legg, 59 W.Va. 315, 53 S.E. 545, 3 L.R.A. (N. S.) 1152; Hughes v. Frum, 41 W.Va. 445, 23 S.E. 604; Kay v. Railroad, 47 W.Va. 467, 35 S.E. 973.
Does the declaration show good cause of action? As one ground of demurrer, it is said that, the declaration showing the plaintiff to be a married woman, she cannot sue in her own name. Here we meet with a question somewhat difficult, more so than at first it appeared to me. The authorities differ somewhat. By the common law the suit for a tort to the wife could not be sued by her alone by preponderance of authority This was on account of unity of husband and wife placing her under disability; but we have a statute saying that "a married woman may sue or be sued in any court of law or chancery." Is such a demand as this arising from tort, a mere claim for unliquidated damages, a property right, so as to be considered a separate estate of the wife? If so, there is no difficulty in saying that she may sue to enforce it under that statute giving her full capacity to sue. I think with some hesitation, that it is a property right as held in Jaynes v. Jaynes, 39 Hun (N. Y.) 40. It has been held otherwise. Gibson v. Gibson, 43 Wis. 23, 28 Am.Rep. 532. It is true that it does not seem comprehended by sections 1, 2, and 3 of chapter 66 of Code 1906. It is not property acquired "by inheritance or by gift, grant, devise or bequest." It is a right to demand money. It must be in favor of some one. This tort was to the wife's injury. She is the meritorious cause of action. By the common law action for tort injurious to the wife must be by husband and wife. The right was in the wife, but, owing to disability, she could not sue alone. First Minor's Inst. 387. It is suggested that section 13 of chapter 66 specifies three cases where the married woman may be sued alone, one being where the action concerns her separate property, and it is said that this section 13 limits the right of action under 15, and must be read with it; but those two sections have different functions, one giving the right of action to the wife to sue in her own name, the other gives right to sue the wife without joining her husband--two different purposes. I do not see how section 13 has anything to do with a suit by the wife, since it touches only suits against a married woman, and does not give action in her favor. We think that section 15 should be given a liberal construction to enable a married woman to sue, and that section 3 should be liberally construed to make such a demand separate property. The old rules of the common law laid down centuries gone, making the wife the inferior, practically a slave, have become wholly distasteful to enlightened public sentiment, and from statute and refusal of many courts to follow them have "gone glimmering through the dream of things that were, the school boy's tale, the wonder of an hour." The rule saying that for a tort against the wife she could not sue during wedlock, but could do so after its close, arose from the old rule stated by Blackstone thus: "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." 3 Bl. 142. The old rule made the two persons a unit, and sunk the individuality of the woman in the individuality of the man. Her property rights were sunk largely. Therefore she could not alone sue to enforce her right. But in our day, when we look at not merely the letter, but the purpose, of acts giving the wife separate estate, and right to sue, and modern decisions, we conclude that old rules have perished, that a wife is not the legal inferior, but the equal, of the husband. Reflect that in sustaining the wife's capacity to sue we only say that her incapacity to sue for a tort affecting her was only a disability to sue during wedlock, and that is removed by a broad statute giving her absolute right to sue. We do not go far. We do not legislate. The Legislature has plainly legislated this result by fair construction of the letter and spirit of its acts. There are older cases denying the right of married woman to sue for alienation of the affection of her husband. Duffies v. Duffies, 76 Wis. 374, 45 N.W. 522, 8 L.R.A. 420, 20 Am.St.Rep. 79, and Doe v. Roe, 82 Me. 503, 20 A. 83, 8 L.R.A. 833, 17 Am.St.Rep. 499. But in later days since the separate estate acts protecting the property of the wife many many cases assert this right of action in the wife. Cooley on Torts, 475, says that 20 states concede this right of action to the wife in her own name. For the proposition that such action lies, I cite Tiffany on Domestic Relations, 78; note in 94 Am.Dec. 593; note 20 Am.St.Rep. 88; Williams v. Williams, 20 Colo. 57, 37 P. 614; 15 Amer. & Eng. Ency. L. 864; Westlake v. Westlake, 34 Ohio St. 621, 32 Am.Rep. 397; Jaynes v. Jaynes, 39 Hun (N. Y.) 40; Gernerd v. Gernerd, 185 Pa. 233, 39 A. 884, 40 L.R.A. 549, 64 Am.St.Rep. 646, and note. I refer particularly to the well-considered case of Bennett v. Bennett, 116 N.Y. 584, 23 N.E. 553, 6 L.R.A. 553. It holds that whilst, before the late statute of New York providing that "in an action or special proceeding a married woman appears, prosecutes, or defends alone or joined with other parties, as if she were single," the action had to be in the name of the husband and wife, yet that statute would entitle the wife to an action in her own name for the alienation of the affection of her husband. Our statute is to the same effect as the New York statute. As said above, if this demand is separate property, there can be no question that the wife can sue alone; but, even if we cannot regard it as separate property, then I would say that section 15 giving her right to sue, even if this demand be not property, it is an actionable right springing from a wrong to her, and she has a right to sue. That section alone vests in her power to sue, and thus abolishes former laws disableing her to sue alone because of the unity of husband and wife. This was so held in Beach v. Brown, 20 Wash. 266, 55 P. 46, 43 L.R.A. 114, 72 Am.St.Rep. 98, and Seaver v. Adams, 66 N.H. 142, 19 A. 776, 49 Am.St.Rep. 597, and cases in note. Some cases hold that without an enabling statute the wife may sue alone. Foot v. Card, 58 Conn. 1, 18 A. 1027, 6 L.R.A. 829, 18 Am.St.Rep. 258; Williams v. Williams, 20 Colo. 57, 37 P. 614. ...
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