Bernhardt v. Perry
| Decision Date | 25 January 1919 |
| Citation | 208 S.W. 462,276 Mo. 612 |
| Parties | EMMA BERNHARDT and GEORGE BERNHARDT, her husband, Appellants, v. LEWIS PERRY |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. J. Hugo Grimm Judge.
Affirmed.
H. C Whitehill for appellants.
(1) A married woman, by statute, may sue in law or in equity, with or without joining her husband as a party. R. S. 1909, sec 8304. (2) The Statute of limitations does not operate against a married woman during coverture. R. S. 1909, sec. 1894; Lindell Co. v. Lindell, 142 Mo. 61; Linck v. Vorhauer, 104 Mo.App. 368; Hall v. Frank, 165 Mo. 430; Graham v. Ketchum, 192 Mo. 15. (3) The Constitution requires that the courts of the State shall be open to every person, and certain remedy offered for every injury to person, property, or character; and that, without denial or delay. Const. Mo., art. 2, sec. 10. (4) The Constitution of Missouri and the Constitution of the United States both prohibit the taking of property without due process of law, while the United States Constitution provides that no State "shall deny to any person within its jurisdiction the equal protection of the laws." Const. Mo. art. 2, sec. 30; U. S. Const., Amend. 14, sec. 1; 8 Cyc. 1058, 1095; Holden v. Hardy, 169 U.S. 366; Blake v. McClung, 172 U.S. 239. (5) A married woman may sue a third person for alienating the affections of her husband, on the theory that her right to his companionship and society has been violated. Clow v. Chapman, 125 Mo. 101; Nichols v. Nichols, 147 Mo. 386; Claxton v. Pool, 182 Mo.App. 13; Cornelius v. Cornelius, 233 Mo. 1; Nolin v. Pearson, 191 Mass. 283, 4 L. R. A. (N. S.) 643; Sims v. Sims, 29 L. R. A. (N. S.) 842. (6) A wife may sue a third person for a tortious act resulting in the insanity of her husband. Clark v. Hill, 69 Mo.App. 544. She may sue a third person for the loss of the society -- the consortium -- of her husband, where the husband was incapacitated by the sale of morphine. Flandermeyer v. Cooper, 85 Ohio St. 327, 40 L. R. A. (N. S.) 360. (8) She sue upon the bond of a liquor dealer for the loss of her husband's society, through the sale of liquor to her husband. Schlosser v. State, 55 Ind. 82. (9) The wife is entitled to the support, society, protection, aid, comfort and companionship of her husband and for the wrongful deprivation thereof by any person, and by whatever means, she has a right of action against such person for so depriving her of these material benefits of the marital relation. Nichols v. Nichols, 147 Mo. 401; Flandermeyer v. Cooper, 85 Oh. St. 327, 40 L. R. A. (N. S.) 363; Sims v. Sims, 76 A. (N. J.) 1063, 29 L. R. A. (N. S.) 842. (10) The Married Women's Acts of Missouri, at the time this injury to the husband was inflicted, provided, among other things, that all personal property including "rights of action which have come to her during coverture . . . or has grown out of any violation of her personal rights," shall be her separate property. R. S. 1899, sec. 4340. (11) The right of a wife to the society -- consortium -- of her husband is one of her personal rights, and the benefit she has therein is equal to that which the husband has in the consortium of his wife, nor is his right thereto greater than hers. Clow v. Chapman, 125 Mo. 104; Nichols v. Nichols, 147 Mo. 401; Claxton v. Pool, 182 Mo.App. 13; Cornelius v. Cornelius, 233 Mo. 1; 1 Cooley on Torts (3 Ed.), p. 477; Westlake v. Westlake, 34 Oh. St. 621; Flandermeyer v. Cooper, 85 Ohio St. 327, 40 L. R. A. (N. S.) 360; Sims v. Sims, 29 L. R. A. (N. S.) 842; Weber v. Weber, 169 S.W. 318, L. R. A. 1915A, 67; Nolin v. Pearson, 191 Mass. 283. (12) A well-known legal principle scarcely needing citation, is that a husband is entitled to the aid, society and assistance -- the consortium -- of his wife. For any violation thereof, by a third person, he has a cause of action. Cullar v. Railway, 84 Mo.App. 349; Nelson v. Railway, 113 Mo.App. 659; Kirkpatrick v. Railway, 129 Mo.App. 524; Womach v. St. Joseph, 201 Mo. 467. (13) If a husband at common law can sue for the loss or injury to the society -- the consortium -- of his wife, there can be no real or substantial reason why, under our statutes, a wife cannot sue for a corresponding loss or injury to her right to the consortium of her husband, each party to the marriage having a personal as well as a legal right to the conjugal society of the other. Such right in a wife existed at common law but could not be enforced under that system for lack of appropriate proceedings or writs, because of the unity of husband and wife which predominated, forcing the recognition of such right into the ecclesiastical courts. Orme v. Orme, 2 Adams Eccl. Rep. 382; R. R. v. Jackson (1891), 1 Q. B. 85; Lynch v. Knight, 9 H. L. Cas. 577, 11 Irish Jurist, 284 (3 Bl. Com. 87 and 94); Clow v. Chapman, 125 Mo. 101; Nichols v. Nichols, 147 Mo. 386; Cornelius v. Cornelius, 233 Mo. 386; Flandermeyer v. Cooper, 85 Ohio St. 327. (14) Whatever may be the trend of the decisions of other States as to the contentions of appellant, it is certain that this Court must construe this statute of Missouri for itself, and that the only fair and reasonable and logical construction to be placed upon it is that a married woman, now having the equal right to the society, care, aid, protection, etc., in short, the consortium, of her husband for any deprivation thereof should be afforded a certain and proper remedy. Nichols v. Nichols, 147 Mo. 410; Const. Mo. art. 2, sec. 30; U. S. Const., Amend. 14, sec. 1; Blake v. McClung, 172 U.S. 239.
Jones, Hocker, Sullivan & Angert, C. P. Ellerbe, and J. C. Jones, Jr., for respondent.
(1) Where the husband is injured through the negligence of another, the wife cannot recover for the loss of the consortium of her husband. Stout v. Railway Co., 172 Mo.App. 113; Gambino v. Coal & Coke Co., 175 Mo.App 653; Feneff v. New York Ry. Co., 203 Mass. 278, 24 L. R. A. (U.S.) 1024; Goldman v. Cohen, 63 N.Y.S. 459; Brown v. Kistleman, 177 Ind. 692; Marri v. Railroad, 84 Conn. 9, 33 L. R. A. (N. S.) 1042; Kelley v. New York Ry. Co., 168 Mass. 308; Nolin v. Pearson, 191 Mass. 283, 286. (2) Even if the wife has a cause of action for damages for the loss of the consortium of her husband by reason of injury sustained by him on account of the defendant's negligence, her husband has no interest in said action and he is improperly joined as a party plaintiff. Sec. 1735, R. S. 1909; Sec. 8304, R. S. 1909; Smith v. City of St. Joseph, 55 Mo. 456; Elliott v. Kansas City, 210 Mo. 516; Womach v. City of St. Joseph, 201 Mo. 467. (3) There is a vast and fundamental difference between an action by the wife for the alienation of her husband's affections and the action here sought to be maintained. Malice, actual or implied, on the part of the defendant is essential before an action for the alienation of affections will lie; and malice, actual or implied, having been shown, damages are allowed even though no actual damages are proved. Actions for the alienation of affections are adjuncts of the criminal law (see Smith v. Nicholas Bldg. Co., 112 N.E. 205, and Goldman v. Cohen, 63 N.Y.S. 459). They are punitive actions engrafted on the law of civil rights in aid of the criminal law and as such are exceptions to the law concerning civil rights, and the damages recoverable by the injured party in such actions are more in the nature of a punishment or penalty inflicted upon the wrongdoer than as compensation for the loss actually sustained by the plaintiff. Geromini v. Brunelle, 214 Mass. 465; Rinehart v. Bills, 82 Mo. 534; Cornelius v. Cornelius, 233 Mo. 29. (4) Where, however, "the gravamen of the action is the negligence of the defendant," damages are recoverable by the injured party for the injury or loss actually sustained and not as a penalty or punishment upon the defendant. There is no allegation in the petition in this case that the defendant was actuated by malice, actual or implied, or that the injuries were intentionally inflicted upon the plaintiff's husband for the purpose of depriving plaintiff of her husband's affections, and the plaintiff has not brought herself either within the reason or the basis of the rule or principle of law which allows her to recover for the loss of her husband's consortium in an action for the alienation of her husband's affections. Goldman v. Cohen, 63 N.Y.S. 459; Smith v. Nicholas Building Co., 112 N.E. 205. (5) There is no "violation" of the right of the wife to the consortium of her husband where, as here, the basis or gravamen of the action is the negligence of another. At common law, the husband was entitled to the services of his wife, and he alone could maintain an action for the loss thereof against one as the result of whose negligence or otherwise he was deprived of her services. The right to recover for the injuries actually sustained by the wife, however, was recognized as belonging to the wife herself, but as she could not maintain an action in her own name at common law, her husband was required to join with her in actions against a defendant for the recovery for such injuries. In other words, the wife was entitled to recover in her husband's name at common law for violations of her person or her personal rights. For a violation of the husband's personal rights, he alone could maintain an action, and the wife was neither a necessary nor a proper party thereto. So, as to the husband's services, the right to sue for the loss thereof was in him and not in her. (6) The wife never had any right to the services of her husband at common law, and she is endowed with no such right under the statutes of this State. As the common law gave the wife no right to the husband's services and no right to sue for injuries which occasioned the loss of his...
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