Lockwood v. Lockwood

Decision Date13 April 1897
Docket Number10.290--(243)
Citation70 N.W. 784,67 Minn. 476
PartiesMAE ALICE LOCKWOOD v. JOHN E. LOCKWOOD and Wife
CourtMinnesota Supreme Court

Appeal by defendants from an order of the district court for Hennepin county, Elliott, J., denying a new trial. Affirmed.

The order denying the motion for a new trial is therefore affirmed.

Koon Whelan & Bennett, for appellants.

The question in this case is not whether in Minnesota a married woman can maintain an action in her own name for enticing away her husband. Certain facts in this case differentiate the question here from that question. (1) After plaintiff's marriage the defendants gave her a home and asylum. (2) At the time of the alleged enticement plaintiff and her husband were members of defendants' household. (3) While subjected to ill treatment there by both her husband and his parents, plaintiff left their house and her husband's bed and board. (4) He did not follow her, but continued to live at home. (5) Plaintiff continued to live apart from her husband, he meantime furnishing her with separate support. (6) Her action is for his abandonment of her induced by his parents. (7) Her action is against his parents. By reason of these facts plaintiff cannot maintain this action, even if such a right of action belongs to a married woman under the Minnesota law.

No duty was imposed by law upon these parents to furnish plaintiff a home or asylum. Pollock v. Pollock, 9 Misc. (N. Y.) 82, 29 N.Y.S. 37; Young v. Young, 8 Wash. 81, 35 P 592. If the ill treatment of plaintiff, which she received at defendants' hands, was the sole cause of her abandonment of her husband, this action will not lie. The parents of her husband are not liable in a suit for alienating the affections of their son when they, without provocation, drive her away from their home and permit him to remain. They have a perfect right to drive her away. Young v. Young, supra. The motives of a parent in counseling a married child in his domestic affairs are presumed to be good, until the contrary is made to appear. If the parent act in good faith no suit lies against him. Reed v. Reed, 6 Ind.App. 317, 33 N.E. 638; Hutcheson v. Peck, 5 Johns. 195; Tucker v. Tucker, 74 Miss. 93, 19 So. 955; Smith v. Lyke, 13 Hun, 204; Bennett v. Smith, 21 Barb. 439; Huling v. Huling, 32 Ill.App. 519.

The complaint must allege that the parent's act was done maliciously, and the evidence must positively show malice or it must necessarily be deduced from the circumstances. Reed v. Reed, supra; Westlake v. Westlake, 34 Oh. St 621; Tucker v. Tucker, supra; Hutcheson v. Peck, supra. This case does not contain any positive evidence of malice or of circumstances from which malice must necessarily be deduced. The presumption of fact, that the parent acted only for the best interest of his child, must be clearly overcome by plaintiff by weight of evidence. Pollock v. Pollock, supra. Charge of Judge Mitchell in Huot v. Wise, 27 Minn 68, 6 N.W. 425; MS. record of case.

Apart from the distinguishing features of this case, plaintiff has no right of action. Kroessin v. Keller, 60 Minn. 372, 62 N.W. 438; 2 Cooley's Blackst. 143; Van Arnam v. Ayers, 67 Barb. 544; State v. Pulle, 12 Minn. 99 (164); Pyeatt v. Powell, 10 U. S. App. 200, 2 C. C. A. 367, 51 F. 551; Doe v. Roe, 82 Me. 503, 20 A. 83; Duffies v. Duffies, 76 Wis. 374, 45 N.W. 522. Reason and natural justice require that an action by a married woman against a third person shall not lie, so long as her husband is an incompetent witness in the case. G. S. 1894, § 5662. G. S. 1894, §§ 5530, 5531, 5159, do not give any such right of action to a married woman.

The cases of Lynch v. Knight, 9 H. L. 577, and of Westlake v. Westlake, 34 Oh. St. 621, were both actions for slander and were decided by a divided court. The ecclesiastical law of England was no part of the common law and has never been adopted here. Any argument from the ecclesiastical law, as attempted in Weldon v. Weldon, L. R. 9 P. D. 52, and Segelbaum v. Segelbaum, 39 Minn. 258, 39 N.W. 492, is inept. The fallacy in the cases of Warren v. Warren, 89 Mich. 123, 50 N.W. 842, and Bennett v. Bennett, 116 N.Y. 584, 23 N.E. 17, was in holding (1) that the common law gives a wife a legal right to the consortium of her husband, and (2) that the common law ever gave her, alone and independent of her husband, a remedial right for breach of any right of person. Want of right and want of remedy are the same thing. 1 Bacon, Abr. 66; Ashby v. White, 2 Ld. Raym. 938. Under the common law of this state, as modified by statute, a married woman has not this right of action, and any construction of the existing law giving her such right amounts to judicial legislation. Althen v. Tarbox, 48 Minn. 18, 50 N.W. 1018; Kroessin v. Keller, 60 Minn. 572, 62 N.W. 438; Pett-Morgan v. Kennedy, 62 Minn. 348, 64 N.W. 912; Gillespie v. Gillespie, 64 Minn. 381, 67 N.W. 206.

Under G. S. 1894, § 5662, plaintiff was an incompetent witness without the consent of her husband. Every word of her testimony to prove her separate action against defendants established the right of joint action, which, in principle, she had against defendants and against her husband. In applying a statute to new conditions or to a new class of cases, evidently not within its purview when enacted, courts will so construe it as to carry out the evident intent of the statute and preserve justice.

Welch, Hayne, Hubachek & Conlin, for respondent.

The cases cited by opposing counsel that parents may advise a married child recognize the rule with proper limitations. Schouler, Dom. Rel. § 41. The right of the parent is confined to giving good advice honestly. For an exception see Williams v. Williams, 20 Colo. 65, 37 P. 614; Hutcheson v. Peck, 5 Johns. 196. In Young v. Young, 8 Wash. 82, 35 P. 592, the plaintiff was the wife and lived at the home of her husband's parents. It appears from the opinion in that case plaintiff had been in no wise maltreated while living there, and there was no direct evidence that her husband had ever refused to live with her, or that the appellants had ever undertaken to induce their son to abandon his wife. The right of the parent to advise his child is recognized when the necessity of the situation justifies such action by the parent. Smith v. Lyke, 13 Hun, 204; Tucker v. Tucker, 74 Miss. 93, 19 So. 955.

Van Arnam v. Ayers, 67 Barb. 544, was overruled in Bennett v. Bennett, 116 N.Y. 584, 23 N.E. 17, and disregarded in Baker v. Baker, 16 Abb. N. C. 293. The opinion in the Baker case proves the fallacy of appellants' contention that loss of the wife's services is the gist of the action. See Bigelow, Torts, 153; Rinehart v. Bills, 82 Mo. 534. Wisconsin, Maine, New York (but see Bennett and Baker cases, supra,) and Indiana (but see Haynes v. Nowlin, 129 Ind. 581, 29 N.E. 389) are the only states which have ever denied to the injured party the right of action for alienation of her husband's affections. Clow v. Chapman, 125 Mo. 101, 28 S.W. 328; Williams v. Williams, 20 Colo. 51, 37 P. 614; Hodgkinson v. Hodgkinson 43 Neb. 269, 61 N.W. 577; Foot v. Card, 58 Conn. 1, 18 A. 1027; Nichols v. Nichols, 134 Mo. 187, 35 S.W. 577; Warren v. Warren, 89 Mich. 123, 50 N.W. 842; Lynch v. Knight, supra; Holmes v. Holmes, 133 Ind. 386, 32 N.E. 932. Bennett v. Bennett, supra; Jaynes v. Jaynes, 39 Hun, 40; Waldron v. Waldron, 45 F. 315; Bassett v. Bassett, 20 Ill.App. 543; Haynes v. Nowlin, 129 Ind. 581, 29 N.E. 389; Wolf v. Wolf, 130 Ind. 599, 30 N.E. 308; Postlewaite v. Postlewaite, 1 Ind.App. 473, 28 N.E. 99; Reed v. Reed, 6 Ind.App. 317, 33 N.E. 638; 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, 17 Abb. N. C. 226; Westlake v. Westlake, 34 Oh. St. 621; Mehrhoff v. Mehrhoff, 26 F. 13. G. S. 1894, § 5530, is conclusive on this point, whether at common law the wife had or had not a right of action.

BUCK, J. CANTY, J., dissenting. MITCHELL, J., dissenting.

OPINION

BUCK, J.

This action was brought against John E. Lockwood and Mattie Lockwood, husband and wife, to recover damages for the alleged alienation by them of the affections of Edwin L. Lockwood, their son, from his wife, the plaintiff, Mae Alice Lockwood, and for her consequent loss of his support, protection, and society. The answer of the defendants was a general denial, and upon trial to a jury the plaintiff had a verdict for $ 15,000; and defendants' motion for a new trial having been denied, they bring this appeal. All the parties have resided in the city of Minneapolis for many years. At the time of plaintiff's marriage she was 30 years old, and her husband's age was 35. They were married on November 8, 1894, and the separation took place on the 25th or 26th day of September, 1895. The defendant John E. Lockwood is the president of the Union Iron Works, in the city of Minneapolis, and the son, Edwin L. Lockwood, is the secretary and treasurer of the company. The elder Lockwood lives in a very nice home, and has horses and carriages, and everything necessary to live comfortably.

The marriage of Edwin L. Lockwood and this plaintiff took place at the home of a mutual friend without the knowledge of the defendants. The plaintiff's husband has always lived with his parents. On the day of his marriage he announced it in a note written to his parents, and the father, by note, invited him and his wife to come to his home and live; stating therein, also, that he was surprised, but pleased, to hear of their marriage, and that he always had great respect for the plaintiff. The next day the plaintiff and her husband went to defendants' house to reside, and resided there until their separation in the month of September, 1895.

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