Duff v. Henderson

• Decision Date: 25 June 1921
• Docket Number: No. 32511.,32511.
• Citation: 191 Iowa 819,183 N.W. 475
• Parties: DUFF v. HENDERSON.
• Court: Iowa Supreme Court

191 Iowa 819

183 N.W. 475

DUFF

v.HENDERSON.

No. 32511.

Supreme Court of Iowa.

June 25, 1921.

Appeal from District Court, Page County; E. B. Woodruff, Judge.

Action in two counts, one for alienation of affections and one for criminal conversation. The answer alleged that plaintiff and his wife had since been divorced at the instance of the wife. A demurrer to the allegations of the answer was overruled. Plaintiff elected to stand on his demurrer, and judgment was entered accordingly, and plaintiff appeals. Affirmed.

Faville and Stevens, JJ., dissenting.Ferguson, Barnes & Ferguson, of Shenandoah, and L. R. Forsyth, of Hamburg, for appellant.

Thornell & Thornell, of Sidney, and W. E. Mitchell, of Council Bluffs, for appellee.

FAVILLE, J.

The appellant's petition is in two counts. In one count he seeks to recover damages from the appellee for alienation of the affections of appellant's wife. In a separate count of his petition, the appellant seeks to recover for damages for criminal conversation between the appellee and appellant's wife. The appellee answered the said counts of the petition by alleging that the appellant was barred and estopped under section 3181 of the Code from maintaining either of said alleged causes of action, for the reason that after the alleged causes of action arose the appellant's then wife obtained a divorce from the appellant. A demurrer to the allegations of the answer was overruled.

[1] Section 3181 of the Code provides:

“When a divorce is decreed the guilty party forfeits all rights acquired by the marriage.”

In Hamilton v. McNeill, 150 Iowa, 470, 129 N. W. 480, Ann. Cas. 1912D, 604, we held that section 3181 of the Code was a full and complete bar to the right of a husband to recover for alienation of his wife's affection, where the wife subsequently obtained a divorce from her husband. In Wood v. Mathews, 47 Iowa, 409, we held, in an action for criminal conversation, where the plaintiff's wife had procured a divorce from him, that this constituted no defense to an action for damages for the injuries sustained prior to the time of procuring the divorce.

Wood v. Mathews was considered by the court in Hamilton v. McNeill, and in the majority opinion it was said:

“We think, however, that we are not called upon at the present time to say whether the Wood Case should be overruled. As before indicated, the present action is not an action for criminal conversation. The case presented by the petition is one of simple alienation by alleged acts and arts not in themselves criminal. Such an action is essentially different in its nature from an action for criminal conversation, although both contain some elements in common.”

We are squarely confronted with the proposition that we are compelled in the instant case to overrule either Hamilton v. McNeill or Wood v. Mathews. If Hamilton v. McNeill is followed, then the procuring of a divorce by the appellant's wife was a complete bar to appellant's right to recover against the appellee for alienation of his wife's affections. If Wood v. Mathews is to be followed, then the appellant is not barred by reason of the wife procuring a divorce from him from maintaining a cause of action against the appellee for criminal conversation with his wife.

A majority of the court are of the opinion that the majority opinion in the case of Hamilton v. McNeill should be adhered to, and that the obtaining of a divorce by the appellant's wife is a...