Mehrhoff v. Mehrhoff

• Decision Date: 02 January 1886
• Parties: MEHRHOFF v. MEHRHOFF and others. [1]
• Court: U.S. District Court — District of Kansas

26 F. 13

MEHRHOFF v. MEHRHOFF and others. ^[1]

United States Circuit Court, D. Kansas.

January 2, 1886

Day &amp Dodge and Maher & Osmond, for plaintiff.

H. D McMullen and Dieffenbacker & Banta, for defendants.

FOSTER J.

The plaintiff sues to recover damages for an alleged violation of her marital rights, in this, to-wit: that the defendants, who are the father and mother of William Mehrhoff, her husband conspired to separate the plaintiff and her said husband, and to deprive the plaintiff of the care and society of her said husband, and alienate his affections from her; that, to accomplish the said purposes, the defendants began systematically to poison and prejudice the mind of her husband against her by telling him false stories about the plaintiff, charging her with unwillingness and inability to do housework, and by treating plaintiff in her husband's presence with gross disrespect, and finally by falsely and maliciously charging the plaintiff, in her husband's presence, with having committed adultery,-- by reason whereof, the affections of the plaintiff's husband were alienated from her, and caused him to treat her badly, and with such cruelty that she was compelled to take her infant child and flee from her husband's domicile in the night-time, and that he has completely abandoned her and said child; that he has no property out of which she could be decreed alimony, etc., to her damage, $5,000. To the petition defendants file a general demurrer.

The main question presented in this case is this: Can a married woman maintain an action in her own name for the alienation of the affections of her husband, and depriving her of his society, care, and support? It must be said that no such right of action existed under the common law by reason of the legal unity of husband and wife. Has the legislation on the rights of married women in this state removed this barrier of the common law? In Westlake v. Westlake, 34 Ohio St 621, this question is discussed at length under the statute of that state, and the court, by a divided bench, (a majority of one,) held that the wife could maintain her action. In Logan v. Logan, 77 Ind. 558, the court, by a majority of one, decided that under the statutes of Indiana the wife could not maintain an action, but, the words being slanderous, she could maintain her action of slander. It will be observed from reading these cases that under both the statutes of Ohio and Indiana the right of a married woman to sue or be sued alone was restricted to certain subjects and causes of action. Under the statutes of this state the right of a married woman to sue and be sued is without restriction or limitation in terms. It reads as follows: 'A woman may, while married, sue and be sued, in the same manner as if she were unmarried. ' St. 1879, c. 62, Sec. 3. The statute also protects her in the enjoyment of her separate real and personal property, and gives her the right to sell and convey such...