Bennett v. Bennett

CourtNew York Court of Appeals
Citation23 N.E. 17,116 N.Y. 584
Decision Date03 December 1889

Appeal from supreme court, general term, fourth department.

Action by Elvira J. Bennett against Oliver Bennett. Plaintiff obtained judgment, which was affirmed by the general term. Defendant appeals.

HAIGHT and PARKER, JJ., dissenting.

E. K. Clark, for appellant.

Alexander Cummings, for respondent.


The plaintiff, a married woman, brought this action to recover damages from the defendant for enticing away her husband, and depriving her of his comfort, aid, protection, and society. The defendant insists that neither at common law, nor under the act concerning the rights and liabilities of husband and wife, can such an action be maintained. It was provided by that statute that any married woman might, while married, sue and be sued in all matters having relation to her sole and separate property, and that she might maintain an action in her own name, for damages, against any person or body corporate, for any injury to her person or character, the same as if she were sole. Laws 1860, c. 90, p. 158, § 7, as amended by chapter 172, Laws 1862, p. 343. An injury to the person, within the meaning of the law, includes certain acts which do not involve physical contact with the person injured. Thus criminal conversation with the wife has long been held to be a personal injury to the husband. Delamater v. Russell, 4 How. Pr. 234, (1850;) Straus v. Schwarzwaelden, 4 Bosw. 627, (1859.) And the seduction of a daughter a like injury to the father. Taylor v. North, 3 Code Rep. 9, (1850;) Steinberg v. Lasker, 50 How. Pr. 432. The Code of Civil Procedure, in defining ‘personal inury,’ includes, under that head, libel, slander, ‘or other actionable injury to the person.’ Section 3343, subd. 9. It is well settled that a husband can maintain an action against a third person for enticing away his wife, and depriving him of her comfort, aid, and society. Hutcheson v. Peck, 5 Johns. 196; Barnes v. Allen, 1 Abb. Dec. 111. The basis of the action is the loss of consortium, or the right of the husband to the conjugal society of his wife. It is not necessary that there should be proof of any pecuniary loss in order to sustain the action. Hermance v. James, 32 How. Pr. 142;Rinehart v. Bills, 82 Mo. 534. Loss of services is not essential, but is merely matter of aggravation, and need not be alleged or proved. Bigaouette v. Paulet, 134 Mass. 125. According to the following cases, a wife can maintain an action, in her own name and for her own benefit, against one who entices her husband from her, alienates his affection, and deprives her of his society. Jaynes v. Jaynes, 39 Hun, 40; Breiman v. Paasch, 7 Abb. N. C. 249;Baker v. Baker, 16 Abb. N. C. 293;Warner v. Miller, 17 Abb. N. C. 221; Churchill v. Lewis, Id. 226; Simmons v. Simmons, 4 N. Y. Supp. 221. There appears to be no reported decision in this state holding that such an action will not lie, except Van Arnam v. Ayers, 67 Barb. 544. That case was decided at special term, in [116 N.Y. 588]1877, and the learned justice who wrote the opinion therein, as a member of the general term when the case now under consideration was affirmed, concurred in the result, and stated that, owing to recent authorities, he thought the right of action should be upheld. Some of the cases rest mainly upon the statute already alluded to, and sustain the action upon the theory that enticing away the wife is such an injury to the personal rights of the husband as to amount to an injury to the person, while others proceed upon the ground that the loss of consortium is an injury to property, in the broad sense of that word, ‘which includes things not tangible or visible, and applies to whatever is exclusively one's own.’ Jaynes v. Jaynes, supra, sustains the action upon either ground, although prominence is given to the latter. Several of the cases justify the action generally, without allusion to any statute.

If the wrong in question is an injury to property simply, it would not abate upon the death of the plaintiff, but could be revived in the name of the personal representatives, a consequence which suggests the precarious nature of that basis for the action. Cregin v. Railroad Co., 75 N. Y. 192, 83 N. Y. 595. In other states the rule varies. In Ohio and Kansas recovery by the wife is permitted, while in Indiana the right has thus far been denied, but by a court so evenly divided in opinion as to leave the ultimate rule in that state uncertain. Clark v. Harlan, 1 Cin. R. 418; Westlake v. Westlake, 34 Ohio St., 621; Mehrhoff v. Mehrhoff, 26 Fed. Rep. 13; Logan v. Logan, 77 Ind. 558. In England, the point does not appear to have been directly passed upon, but in one case the judges approached it so nearly and differed so widely in their discussions that it is cited as an authority upon both sides of the question. Lynch v. Knight, 9 H. L. Cas. 577. The lord chancellor, (CAMPBELL,) in delivering the leading opinion, said: ‘If it can be shown that there is presented to us a concurrence of loss and injury from the act complained of, we are bound to say that this action lies. Nor can I allow that the loss of consortium or conjugal society can give a cause of action to the husband alone.’ Lord CRANWORTH was strongly inclined to think that this view was correct, but did not feel called upon to express a decided opinion, as it was agreed that the judgment of the court should be placed upon another ground. Lords BROUGHAM and WENSLEYDALE thought that the action would not lie. In that case, it is to be observed, the husband joined the wife in bringing the action, ‘for conformity,’ as there was no enabling statute authorizing her to sue in her own name.

While this action was tried, decided at the general term, and argued in this court upon the theory that the acts of 1860 and 1862, concerning the rights and liabilities of husband and wife, were still in force, in fact they have no application, because the sections heretofore regarded as applicable were repealed by the general repealing act of 1880. Laws 1880, c. 245, §§ 36, 38.

The judgment in this action, therefore, cannot be affirmed upon the ground that the wrong complained of may be redressed under those statutes. Can it be sustained upon the theory that the right of action belongs to the wife, according to the general principles of the common law, and that she may now maintain it, being permitted to sue in her own name? The Code of Civil Procedure (section 450) provides: ‘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 capacity of the plaintiff to sue cannot be questioned under this statute, but whether she has a cause of action to sue upon is the important inquiry. Can she maintain an action for any personal injury, even for an assault and battery, since the repealing act already cited went into effect? Admitting her power to assert her rights in court, what right has she to assert? Has she such a legal right to the conjugal society of her husband as to enable her to recover against one who wrongfully deprives her of that right?

It is urged that the novelty of the action is a strong argument that it cannot be upheld. The same point was urged in almost the first action brought by a husband against one who had enticed away his wife, and the answer made by the court in that case we repeat as applicable to this: ‘The first general objection is that there is no precedent of any such action as this, and that, therefore, it will not lie. * * * But this general rule is not applicable to the present case. It would be, if there had been no special action on the case before. A special action on the case was introduced for this reason, that the law will never suffer an injury and a damage without a remedy, but there must be new facts in every special action on the case.’ Winsmore v. Greenbank, Willes, 577, 580.

Moreover, the absence of strictly common-law precedents is not surprising, because the wife could not bring an action alone, owing to the disability caused by coverture, and the husband would not be apt to sue, as by that act he would confess that he had done wrong in leaving his wife. The actual injury to the wife from the loss of consortium, which is the basis of the action, is the same as the actual injury to the husband from that cause. His right to the conjugal society of his wife is no greater than her right to the conjugal society of her husband. Marriage gives to each the same rights in that regard. Each is entitled to the comfort, companionship, and affection of the other. The rights of the one and the obligations of the other spring from the marriage contract, are mutual in character, and attach to the husband as husband, and to the wife as wife. Any interference with these rights, whether of the husband or of the wife, is a violation, not only of a natural right, but also of a legal right, arising out of the marriage relation. It is a wrongful interference with that which the law both confers and protects. A remedy, not provided by statute, but springing from the flexibility of the common law, and its adaptability to the changing nature of human affairs, has long existed for the redress of the wrongs of the husband. As the wrongs of the wife are the same in principle, and are caused by acts of the same nature as those of the husband, the remedy should be the same. What reason is there for any distinction? Is there not the same concurrence of loss and injury in the one case as in the other? Why should he have a right of action for the loss of her society, unless she also has a right of action for the loss of his society? Does not the principle that ‘the law will never suffer an injury and a damage without a remedy’ apply with equal force to either case? Since her society has a value to him capable of admeasurement in damages, why...

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