Nolin v. Pearson

• Decision Date: 03 April 1906
• Parties: NOLIN v. PEARSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

191 Mass. 283

77 N.E. 890

NOLIN v. PEARSON.

Supreme Judicial Court of Massachusetts, Essex.

April 3, 1906

COUNSEL

Essex S. Abbott, for appellant.

Casey & Jones and Ernest Foss, for appellee.

BRALEY J.

The early common law recognized and upheld the doctrine that for most purposes husband and wife formed a single person represented by the husband, and as a consequence of this legal merger it has been said: '* * * That is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband. * * * Upon this principle of the union of person in husband and wife depend almost all of the legal rights, duties, and disabilities that either of them acquire by the marriage;' and 'the wife * * * hath no separate interest in anything during coverture.' 1 Black Com. (Sharswood's Ed.) *442, *455; 3 Ibid. *143. Or as pointedly and accurately stated in Dixon v. Amerman, 181 Mass. 430, 431, 63 N.E. 1057, with a reference to the early English authorities, the wife was considered the husband's chattel. Personal property in her possession upon marriage passed to him, and could be levied upon for his debts, or bequeathed by him to strangers, and he also took during coverture, a sole estate in her lands which she could not alien unless he joined, or devise even with his assent, unless when exercising a power granted to her at the creating of the estate, nor derive any benefit or income therefrom by any contract which she could separately make. Hanlon v. Thayer, Quincy, 99, 1 Am. Dec. 1; Fowler v. Shearer, 7 Mass. 14; Legg v. Legg, 8 Mass. 99; Osgood v. Breed, 12 Mass. 525; Lowell v. Daniels, 2 Gray, 161, 168, 61 Am. Dec. 448; Hawkins v. Providence & Worcester Railroad Co., 119 Mass. 596, 20 Am. Rep. 353; Washburn v. Hale, 10 Pick. 429; Clapp v. Stoughton, 10 Pick. 463, 468, 469; Ames v. Chew, 5 Metc. 320; Gerry v. Gerry, 11 Gray, 381; Bartlett v. Cowles, 15 Gray, 445, 446. Without her consent damages for injury to her person or reputation also might be released by him, or if collected in her lifetime they became his separate property, and although as a husband he had the right to moderately chastise his wife, it was declared by the colony in 1641 that she should be free from corporal correction by him. Southworth v. Packard, 7 Mass. 95; Kelley v. New York, New Haven & Hartford Railroad Co., 168 Mass. 308, 311, 46 N.E. 1063, 38 L. R. A. 631, 60 Am. St. Rep. 397, and cases there cited; Phillips v. Barnet, 1 Q. B. D. 437, 438; Bacon's Abr. B. & F. (B) Colonial Laws of Mass. (Whitmore's Ed.) p. 51. See Com. v. McAfee, 108 Mass. 459, 11 Am. Rep. 383.

While the common law prevails in this state except so far as it may have been modified by statute, it is obvious from this brief reference to some of its provisions that the development of modern society would imperatively call from time to time for the modification or abrogation of many if not all of these archaic conditions. Dunn v. Sargent, 101 Mass. 336, 338; Cooley, Const. Lim. (7th Ed.) 484, 485. Beginning with St. 1842, p. 527, c. 74, and by subsequent statutory enactments the separate legal existence of a married woman as to her right to hold and dispose of property both real and personal as well as the right to her person has been gradually recognized and established. St. 1845, p. 531, c. 208; St. 1846, p. 139, c. 209; St. 1855, p. 710, c. 304; St. 1857, p. 598, c. 249; Gen. St. 1860, c. 108; St. 1864, p. 255, c. 276; St. 1868, p. 82, c. 95; St. 1869, p. 703, c. 409; St. 1871, p. 655, c. 312; St. 1874, p. 117, c. 184; Pub. St. 1882, c. 147; Rev. Laws, cc. 153, 140. This remedial legislation has resulted in very largely impairing the unity of husband and wife as it existed at the common law. Butler v. Ives, 139 Mass. 202, 203, 29 N.E. 654; Bradford v. Worcester, 184 Mass. 557, 561, 69 N.E. 310. It must also be taken as settled that for the purposes of divorce or of separate maintenance, or of public charitable relief she may have a separate domicile, and is absolutely entitled to her personal liberty, and earnings, with a corresponding liability for her debts, and contracts, or for torts committed by her, or by her husband under her direction. Osgood v. Osgood, 153 Mass. 38, 26 N.E. 413; Burtis v. Burtis, 161 Mass. 508, 37 N.E. 740; Bradford v. Worcester, ubi supra; McCarty v. De Best, 120 Mass. 89; Shane v. Lyons, 172 Mass. 199, 200, 51 N.E. 976, 70 Am. St. Rep. 261. If the husband still is recognized as nominally the head of the family, and as such may determine their common residence, for the proper conduct of which he may be responsible under the criminal law, his control over the person or property of his wife has been reduced to a minimum, if it has not entirely disappeared. Harmon v. Old Colony Railroad Co., 165 Mass. 100, 42 N.E. 505, 30 L. R. A. 658, 52 Am. St. Rep. 499; Kerslake v. Cummings, 180 Mass. 65, 68, 61 N.E. 760; Bradford v. Worcester, ubi supra. But he retains the unmodified right to her conjugal society, even if her refusal to recognize this right affords him no ground for an absolute divorce, and he may recover damages for loss of consortium when caused by injuries to her person through the wrongs of others, as well as for criminal conversation with her. Southwick v. Southwick, 97 Mass. 327, 93 Am. Dec. 95; Bigaouette v. Paulet, 134 Mass. 123, 126, 45 Am. Rep. 307; Kelley v. New York, New Haven & Hartford Railroad Co., ubi supra. In Kelley v. New York, New Haven & Hartford Railroad Co., while recognizing this right in the husband, it was stated in the closing paragraph of the opinion that the wife had no corresponding right which she could enforce at common law, but whether she had by statute was lefe undecided. The question then left open is now presented for our decision.

When approached in the light of an abstract right arising from and incidental to the civil institution known as marriage, but which as between the parties is treated as a contract, and the consequent conjugal relation, there is great inherent difficulty in sustaining the proposition that, while the husband can demand the right of exclusive marital aid and affection, she has no equivalent right or that a sound public policy requires that she shall remain faithful to her marriage obligations, although he is at liberty to enter upon a course of conduct which may render further marital relations on her part impossible. By the contract each spouse is entitled to the conjugal society and comfort of the other, and this association is one of the mutual obligations growing out of the union of husband and wife. The affection and comfort which each is supposed to derive from the society of the other springs from the joint relation, and is as valuable and important to her as to him. The case of Knight v. Lynch, 9 H. L. Cas. 577, is not an authority to the contrary, as that was a suit for slander brought by the wife who joined the husband for conformity, and the words spoken of her not being actionable in themselves, the special damage alleged was that, in consequence of the slander, she had been compelled by her husband to leave his house, with the consequent loss of his conjugal society. While the decision was placed upon the ground that the act of the husband was not such a natural and probable result of the words spoken as would make the defendant liable in damages, the question whether the right of consortium was confined to the husband alone, although discussed, was left undecided. In the judgments of Lord Chancellor Campbell and Lord Cranworth both were inclined to the view that this right was not limited to the husband, but extended to the wife, while Lord Wenslydale was of opinion that such a right on her part did not exist. Its existence, however, has always been recognized and enforced by the ecclesiastical courts in a suit by her for the restitution of conjugal rights, where in defense nothing less than conduct which would be sufficient to entitle the respondent to a judicial separation was a bar to the relief sought. Orme v. Orme, 2 Add. Ecc. 382; 1 Bish. Mar., Div. & Sep. §§ 69, 1357; Burroughs v. Burroughs, 2 Sw. & Tr. 303.

The absolute privilege of each to the conjugal society of the other must be considered as embracing the persons of both with no distinction in favor of one as against the other, and this equal companionship and aid in the founding and maintenance of the home, and in the rearing of offsprings, is the foundation upon which this most important of all the domestic relations rests. Bennett v. Bennett, 116 N.Y. 584, 23 N.E. 17, 6 L. R. A. 553; Warren v. Warren, 89 Mich. 123, 50 N.W. 842, 14 L. R. A. 545; Smith v. Smith, 98 Tenn. 101, 105, 38 S.W. 439, 60 Am. St. Rep. 838. At common law because the debauching or seduction of the wife was an 'invasion of his exclusive right to marital intercourse * * * and the right to beget his own children,' the husband was allowed to maintain an action for the loss of such aid, comfort, and society as she would be expected to bestow upon him, although there might be no impairment of her services or assistance in the sense that she performed labor in the management or supervision of his household. Hadley v. Heywood, 121 Mass. 236; Bigaoulette v. Paulet, ubi supra; Neville v. Gile, 174 Mass. 305, 54 N.E. 841; Evans v. O'Connor, 174 Mass. 287, 291, 54 N.E. 557, 75 Am. St. Rep. 316; Houghton v. Rice, 174 Mass. 366, 54 N.E. 843, 47 L. R. A. 310, 75 Am. St. Rep. 351. But it was early recognized that if the wife was enticed away, and abandoned her husband, or was subjected to physical violence whereby she became disabled, he could sue for damages suffered by him from the wrongdoer, and either action could be maintained independently of proof of her adultery. 3 Black. Com. ...