Messervy v. Messervy

• Decision Date: 20 May 1909
• Citation: 64 S.E. 753,82 S.C. 559
• Parties: MESSERVY v. MESSERVY et ux.
• Court: South Carolina Supreme Court

64 S.E. 753

82 S.C. 559

MESSERVY v. MESSERVY et ux.

Supreme Court of South Carolina

May 20, 1909

Appeal from Common Pleas Circuit Court of Charleston County; D. E Hydrick, Judge.

Action by Pearl C. Messervy against John W. Messervy and wife. From a judgment overruling a demurrer to the complaint, defendants appeal. Affirmed.

See also, 80 S.C. 277, 285, 61 S.E. 442, 445.

The following is the order of the court below:

"This is an action to recover damages of the defendants for maliciously enticing the plaintiff's husband away from her and depriving her of his comfort, society, and aid. The defendants demur to the complaint on two grounds: (1) That it does not state facts sufficient to constitute a cause of action. (2) Because the husband of the plaintiff is not joined with her in the action.

" Upon the right of the wife to maintain an action upon the grounds stated, the authorities are conflicting. It is denied in Duffies v. Duffies, 76 Wis. 374 45 N.W. 522, 8 L. R. A. 420, 20 Am. St. Rep. 79, where the cases are revised, and some cogent reasons given why the right of the wife to the society of the husband should not be held to be the same in kind, degree, and value as his right to her society. It is shown how the wife is often deprived of the society of the husband from the exigencies of business life, and it is said that to establish this right of action in favor of the wife 'would be the most fruitful source of litigation of any that can be thought of.' That may be so, but it is not sufficient to deny to any person redress for wrongs unlawfully inflicted. The boast of the law is that there can be no wrong without a remedy. Is it wrong for one maliciously to entice a woman's husband away from her and deprive her of his comfort, aid, and society? I apprehend there cannot be two opinions upon that question. It is a legal wrong for which the law ought and does afford a remedy. The right to maintain the action is sustained, in my opinion, by the weight of reason and authority. Bennett v Bennett, 116 N.Y. 584, 23 N.E. 17, 6 L. R. A. 553; Nolin v. Pearson, 191 Mass. 283, 77 N.E. 890, 4 L. R. A. (N. S.) 643, 114 Am. St. Rep. 605, 6 Am. & Eng. Ann. Cas. 658; Trumbull v. Trumbull, 71 Neb. 186, 98 N.W. 683, 8 Am. & Eng. Ann. Cas. 813. In Bennett v. Bennett, supra, the point was made, as in this case, that the husband was not made a party plaintiff. The court held that he was not a necessary party, resting the decision partly upon the construction of the New York Code and the long practice that had prevailed under it, and partly upon the ground that the right of action was the separate property of the wife. The word 'property' is defined by Code Civ. Proc. 1902, § 445, to include 'things in action.' So that, if the right of action for a tort is 'a thing in action,' in the sense in which those words are used in the Code, then the wife may clearly maintain the action alone. In 3 Am. & Eng. Enc. (1st Ed.) at page 235, it is said in defining the words 'chose in action' 'that it' includes the right to recover pecuniary damages for a wrong inflicted

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