Clow v. Chapman
| Decision Date | 26 November 1894 |
| Parties | Clow v. Chapman, Appellant |
| Court | Missouri Supreme Court |
Appeal from Buchanan Circuit Court. -- Hon. A. M. Woodson, Judge.
Reversed and remanded.
Amick & Brown, J. W. Boyd and J. W. Brockett, for appellant.
The court committed error in refusing to permit the plaintiff to introduce any evidence in the case. The petition states a cause of action, and plaintiff should have been permitted to prove the allegations therein made. "A divorced woman may maintain an action for damages for the alienating of the affection of her former husband." By the statutes of this state she could sue, even if she were not divorced. "At all events, there can be no shadow of an excuse for denying her the right of action, when she has been divorced." Postlewaite v. Postlewaite, 28 N.E 99; Bennett v. Bennett, 116 N.Y. 584; 23 N.E. 17; Bassett v. Bassett, 20 Ill.App. 543; Jaynes v Jaynes, 39 Hun, 40; Foot v. Card, 58 Conn. 1; Brieman v. Paasch, 7 Abb. (N. C.) 249; Baker v Baker, 16 Abb. (N. C.) 293; Seaver v. Adams, 19 A. 776; Westlake v. Westlake, 34 Ohio St. 621; Mehrhoff v. Mehrhoff, 26 F. 13; Warner v. Miller, 17 Abb. (N. C.) 221; Churchill v. Lewis, Id., 226; Simmons v. Simmons, 4 N.Y.S. 221; Quick v. Church, 22 or 23 Ontario. Even without the enabling statutes favoring actions by married women, married women could maintain an action in this state where the husband had abandoned the wife and had renounced her society. Rose v. Bates, 12 Mo. 21; Phelps v. Walther, 78 Mo. 320.
Dowe, Johnson & Rusk for respondent.
(1) The married woman's act in this state has no further effect than to remove common law disabilities and to enable the wife to sue in her own name without joining her husband with her for "any violation of her personal rights." The act created no new right, Revised Statutes, 1889, section 6869. (2) At common law the wife had no right or property in the relationship existing between her husband and herself. She occupied the position of an inferior to her husband. Abbott v. Abbott, 67 Maine, 305; Doe v. Roe, 20 A. 83 (82 Maine, 503); Duffies v. Duffies, 76 Wis. 374; 31 Central Law Journal, page 32 -- note; Mulford v. Clewell, 21 Ohio St. 191; Van Arnam v. Ayers, 67 Barb. 544; Logan v. Logan, 77 Ind. 558; Callaway v. Laydon, 47 Iowa 456; Freese v. Trip, 7 Ill. 503; Confrey v. Stark, 73 Ill. 187; Schouler on Husband and Wife, section 66; Wood v. Matthews, 47 Iowa 409; Blackstone's Commentaries, Book III, pages 142 and 143. (3) Statutes in derogation of the common law are to be strictly construed. (4) The fact that the appellant was, after the acts complained of in the petition, divorced from her husband, does not give her the right to maintain an action for the alienation of his affections. Abbott v. Abbott, 67 Maine, 305; 9 Am. and Eng. Encyclopedia of Law, page 775.
According to the petition the plaintiff and David Clow were married in 1866, and lived together as husband and wife until 1884, when they were divorced, for the fault and misconduct of David. Before they were divorced, the defendant alienated the affections of the plaintiff's husband, and induced him to abandon plaintiff and take up his abode with her, the defendant. The petition contains other averments which need not be recited. At the trial the defendant objected to the introduction of any evidence for the assigned reason that the petition stated no cause of action, which objection the court sustained, and hence this appeal.
The common law gives a husband an action for damages against a third person for enticing away his wife and depriving him of her society. Schouler on Husband and Wife, sec. 64. Proof of pecuniary loss is not necessary to sustain such an action, because the action is based upon loss of the companionship and society of the wife. Reinhart v. Bills, 82 Mo. 534; Begaouett v. Paulet, 134 Mass. 123.
The question we are now called upon to determine is, whether a wife has a corresponding action against third persons for the alienation of the affections of her husband, and depriving her of his society. It seems to be very generally held in this union that the common law gives her no such action, though this question is left in much doubt, in England, by the conflicting opinions in Lynch v. Knight, 9 H. L. Cas. 577.
It is held in Duffies v. Duffies, 76 Wis. 374, 45 N.W. 522, that a married woman has no such action, either at common law or under the statute of that state. The statute there considered, gave the wife an action for any "injury to her person of character." On the other hand, a number of well considered cases in the courts of different states affirm the right of a married woman to maintain an action against third persons for enticing her husband away, and depriving her of his aid, comfort and society. Bennett v. Bennett, 116 N.Y. 584, 23 N.E. 17; Foot v. Card, 58 Conn. 1, 18 A. 1027; Westlake v. Westlake, 34 Ohio St. 621; Seaver v. Adams, 19 A. 776; Postlewaite v. Postlewaite, 1 Ind.App. 473, 28 N.E. 99; Bassett v. Bassett, 20 Ill.App. 543; Mehrhoff v. Mehrhoff, 26 F. 13.
There is considerable diversity in these cases as to the grounds upon which the judgments are made to stand. In Bennett v. Bennett, supra, it is held a wife had a right to such an action by the common law, but the right could only be enforced by joining her husband in the suit, that the code of that state gives her the right to sue in her own name, so that she may now prosecute such a suit for her own benefit. Westlake v. Westlake, supra, is made to stand on the ground that, while the right of the wife to maintain such an action at common law may be doubtful, all doubts are resolved in her favor by the statute laws of that state, which provide that all rights in action which "have grown out of a violation of any of her personal rights" shall remain her separate property and under her sole control. It is also held in that case that the benefit which a wife has in the society of her husband is equal to that which he has in her society.
In Seaver v. Adams, the court recites the substance of the various legislative enactments of that state on the subject of married women, placing a married woman upon an equality with her husband in respect of property, torts and contracts, and conferring upon her the right to sue and be sued. It is then said: "And as the only reason why the wife formerly could not maintain an action for the alienation of her husband's affections was the barbarous common law fiction that her legal existence became suspended during the marriage, and merged into his, which long since ceased to obtain in this jurisdiction, there remains now not the semblance of a reason, in principle, why such an action may not be maintained here."
Such are the grounds upon which some of the cases sustain the wife's action for damages in the class of cases now in question.
We find it stated by one author that the wife can not maintain such an action at common law or under a statute, save where the statute clearly enables her to prosecute such a suit. Schouler on Husband and Wife, sec. 65. On the other hand, it is said: "To entice away, or to corrupt the mind and affections of one's consort is a civil wrong for which the offender is liable to the injured husband or wife." Bigelow on Torts, 153. Cooley says in the text: "It is also generally supposed that the wife can have no action against one who should seduce the husband's affections from her, or in any manner deprive her of his care and society;" but in a note he says: "We see no reason why such an action should not be supported, where, by statute, the wife is allowed, for her own benefit, to sue for personal wrongs suffered by her." Cooley on Torts [2 Ed.], 267.
We may now bring in contrast the status of a married woman in respect to her personal rights under the common law and our statutes, and first as to the common law. "By marriage, the husband and wife are one person in law; that is, the very being or legal existence of the woman is suspended during the marriage, or, at least, is incorporated and consolidated into that of the husband." 1 Bl. Com. 442. And as to the many disabilities of the wife following from this...
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