Beach v. Brown

• Decision Date: 29 November 1898
• Parties: BEACH v. BROWN.
• Court: Washington Supreme Court

55 P. 46

20 Wash. 266

BEACH v. BROWN.

Supreme Court of Washington

November 29, 1898

Appeal from superior court, King county; O. Jacobs, Judge.

Action by Annie E. Beach against Abbie D. Brown. There was a judgment for plaintiff, and defendant appeals. Affirmed.

John E. Humphries, W. E. Humphrey, and E. P Edsen, for appellant.

Lindsay King & Turner, for respondent.

DUNBAR J.

This is an action by the respondent against the appellant for damages for alienating the affections of respondent's husband. A demurrer was interposed to the complaint, to the effect that it did not state facts sufficient to constitute a cause of action, which was overruled. A motion for a nonsuit was also made and overruled. Upon the trial of the cause a verdict was rendered in favor of the respondent, judgment was entered in accordance therewith, and an appeal was taken to this court.

It is the contention of the appellant, in the first instance, that this action cannot be maintained, for the reason that a married woman in the state of Washington cannot maintain a suit in her own name for tort without her husband joining her, where the damages secured would be community property. This statement assumes somewhat the legal questions at issue. But on the main proposition, as to whether a married woman can maintain this action for the loss of the consortium of her husband, the authorities are somewhat conflicting. In Duffies v. Duffies (Wis.) 45 N.W. 522, a case which was strongly relied upon by the appellant, it was decided by a divided court that she could not, but we are not impressed with the reasoning upon which that decision is based. It is conceded that at the common law the husband might maintain an action for the alienation of the affections of a wife, but it is said that the wife's right to the society of the husband is different in degree and value, and in a long opinion, the court undertakes to substantiate this proposition. The reasons given are too numerous to set forth in this opinion, but we think they are unsatisfactory and illogical. The decision is also based upon the fact that at the common law the wife had no property in the consortium of her husband, and that her position as a wife precluded her from bringing the action. An attempt is made in this case to distinguish the cases that hold that the wife at common law had a right to bring this action, but we think the attempt was unsuccessful, and there are other cases maintaining the same view. However, the case of Williams v. Williams (Colo. Sup.) 37 P. 614, squarely decides the proposition the other way, and shows that the doctrine is really based upon the ancient idea of the comparative inferiority of the wife. The court in that case said: 'Mr. Justice Blackstone, who wrote 150 years ago, gave as a reason for denying the wife's right of action in cases of this kind the following: '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. Comm. 142. This language seems strange in the present age, however familiar it may have been during the last century.' And the court then quotes Warren v Warren, 89 Mich. 127, 50 N.W. 844, where it is said: 'The wife is entitled to the society, protection, and support of her husband as certainly, under the law and by moral right, as he is to her society and services in his household.' Foot v. Card, 58 Conn. 1, 18 A. 1027, is also quoted, where the court said: 'So far forth as the husband is concerned, from time immemorial the law has regarded his right to the conjugal affection and society of his wife as a valuable property, and has compelled the man who has injured it to make compensation. Whatever inequalities of right as to property may result from the marriage contract, husband and wife are equal in rights in one respect, namely, each owes to the other the fullest possible measure of conjugal affection and society. The husband owes to the wife all that the wife owes to him. Upon principle, this right in the wife is equally valuable to her, as property, as is that of the husband to him. Her right being the same as his in kind, degree, and value, there would seem to be no valid reason why the law should deny to her the redress which it affords to him.' This reasoning, it seems to us, is more in conformity with modern thought on the subject of the marital relations existing between husband and wife. See, also, Bennett v. Bennett, 116 N.Y. 584, 23 N.E. 17; Van Arnam v. Ayers, 67 Barb. 544; Haynes v. Nowlin, 129 Ind. 581, 29 N.E. 389; Lynch v. Knight, 9 H. L. Cas. 577; Westlake v. Westlake, 34 Ohio St. 621.

But however it may have been at the common law, the trend of judicial opinion in this country has been in favor of extending rights of this kind to the wife, and...