Hodge v. Wetzler

• Citation: 55 A. 49,69 N.J.L. 490
• Parties: HODGE v. WETZLER.
• Decision Date: 08 June 1903
• Court: New Jersey Supreme Court

55 A. 49

69 N.J.L. 490

HODGE

v. WETZLER.

Supreme Court of New Jersey.

June 8, 1903.

(Syllabus by the Court.)

Action by Alphine Hodge against Leana Wetzler. Demurrer to declaration sustained.

Argued February term, 1903, before GUMMERE, C. J., and FORT, PITNEY, and HENDRICKSON, JJ.

Warren Dixon, for plaintiff.

Corbin & Corbin, for defendant.

HENDRICKSON, J. This action is brought by the plaintiff, a married woman, against the female defendant, to recover damages for the alleged alienation of the husband's affections and the resulting loss of his society, comfort, aid, assistance, and support. There are two counts to the declaration, each setting forth substantially the same cause of action, the only difference being that in the first count there is added to the averment of enticing away the husband, etc., the more aggravated charge of criminal conversation. The gist of the action is the same In either case, and that is the loss of "consortium" or the society and comfort of the husband. There is a demurrer to each of the counts. The causes of demurrer are (1) that no such action at law can be brought by the wife; and (2) that the husband is not joined in the action as coplaintiff. This right of action has been known to exist at the common law in favor of a husband against a seducer of his wife's affections since the decision in Winsmore v. Greenbank, Willes, 577, in the year 1747. But no case appears in the long line of English decisions where the wife has brought a corresponding action for a similar invasion of her marital rights. This is not surprising when we reflect upon the disabilities which attached to the wile as a result of coverture, under the common law; for in order to obtain redress for torts to her person or reputation it was necessary for the husband to join in the action, and the damages, when recovered, if collected in his lifetime, belonged to the husband. To have entertained an action of the character we are now considering in favor of the wife it would have become necessary to join the husband, and thus enable the wrongdoer to realize a profit from his own wrongdoing. We find no allusion to the existence of such a right of action in favor of the wife, in the decisions and treatises upon the common law, until the appearance of a dictum of Lord Campbell in the case of Lynch v. Knight, 9 H. L. Cases, 577, which was decided in 1861. The action was for slanderous words affecting the character of the wife, whereby it was alleged that she had lost the affection and society of her husband. It must be observed that in this case the husband Joined the wife in bringing the action "for conformity," as there was no enabling act authorizing her to sue. Lord Campbell said: "If it can be shown there is presented to us a concurrence of loss and injury from the act complained of, we are bound to say 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." In a subsequent portion of his decision he says that the better opinion is that a wife could not maintain or join in an action for criminal conversation against the paramour of her husband who had seduced him. Lord Cranworth was strongly inclined to think that the view expressed by Lord Campbell 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 put upon another ground. Lords Brougham and Wensleydale expressed the view that the action would not lie. In the American cases there has been developed a divergence of views as to whether the married woman had the right of action at common law for the alienation of her husband's affections. This right is denied in the following, among other, cases: Lellis v. Lambert, 24 Ont. App. 653; Morgan v. Martin, 92 Me. 190, 42 Atl 354; Doe v. Roe, 82 Me. 503, 20 Atl. 83, 8 L. R. A. 833, 17 Am. St. Rep. 499; Crocker v. Crocker (C. C.) 98 Fed. 702; Duffies v. Duffies, 76 Wis. 374, 45 N. W. 522, 8 L. R. A. 420, 20 Am. St. Rep. 79; Mehrhoff v. Mehrhoff (C. C.) 26 Fed. 13; Clow v. Chapman, 125 Mo. 101, 28 S. W. 328, 26 L. R. A. 412, 46 Am. St. Rep. 468. Among the cases where this right is held to have existed are the following: Foot v. Card, 58 Conn. 4, 18 Atl. 1027, 6 L. R. A. 829, 18 Am. St. Rep. 258; Haynes v. Nowlin, 129 Ind. 584, 29 N. E. 389, 14 L. R. A. 787, 28 Am. St. Rep. 213; Postlewaite v. Postlewaite, 1 Ind. App. 473, 28 N. E. 99; Smith v. Smith, 98 Teun. 101, 38 S. W. 439, 60 Am. St. Rep. 838; Bassett v. Bassett, 20 Ill. App. 543; Bennett v. Bennett, 116 N. Y. 584, 23 N. E. 17, 6 L. R. A. 553. In the majority of these cases, and in a large number of others noted in 15 Am. & Eng. Enc. (2d Ed.) 865, notes 3 and 4, it has been held that by reason of the disability of coverture the right of action remained in abeyance, and could not be prosecuted by the feme covert in her own name. But it has been generally held in these cases that, where the ban of coverture has been removed by enabling statutes giving her the right to sue as a feme sole, she may maintain this action.

This case is one of first impression in this state, for although McKenna v. Algeo (Feb., 1902) 51 Atl. 936, was a similar action, the case was heard upon a motion for a new trial, and the opinion shows that the right to bring the action was not considered by the court. The new trial was granted upon another ground. We are entirely satisfied, both upon principle and authority, that, whatever may be the true theory of the wife's right of action in the abstract at common law, no remedy then existed whereby such right of action could be maintained. We do not deem it necessary in this case to discuss the question of abstract right just alluded to, for the reason that, conceding its existence, we fail to find a statute of this state empowering a married woman to sue as a feme sole in actions of this character. I may say that it was conceded on the part of the demurrant that the right of the wife to...