Oppenheim v. Kridel

• Decision Date: 29 May 1923
• Citation: 236 N.Y. 156,140 N.E. 227
• Parties: OPPENHEIM v. KRIDEL.
• Court: New York Court of Appeals Court of Appeals

236 N.Y. 156

140 N.E. 227

OPPENHEIM

v.KRIDEL.

Court of Appeals of New York.

May 29, 1923.

Action by Jennie M. Oppenheim against Martha Kridel. From a judgment entered on an order of the Appellate Division (204 App. Div. 305,198 N. Y. Supp. 157), reversing judgment for plaintiff on a verdict, and directing a dismissal of the complaint, plaintiff appeals.

Judgment of Appellate Division modified, granting a new trial, and, as so modified, affirmed.

McLaughlin, J., dissenting.

Appeal from Supreme Court, Appellate Division, First department.

Isaac H. Levy and George Gordon Battle, both of New York City, for appellant.

Charles A. Brodek, of New York City, for respondent.

CRANE, J.

Can a wife maintain an action for criminal conversation as well as a husband? This is the question presented by this appeal.

The plaintiff and her husband were married in 1884 and had one child, who was married in 1909. They lived together in the same house or apartment until 1917. It can be gathered from the evidence that in 1913 the parties had ceased to live together as husband and wife. It is about this time that the defendant, a widow with children, entered into the lives of these two parties. From 1913 until a final separation in 1917, the husband seems to have lost his love and affection for his wife. During this time he was seeing the defendant with more or less frequency. Intimacy increased with the years until in January, 1919, he and the defendant were found in his apartment in New York City under such circumstances as to leave no doubt that they had committed adultery. The fact is conceded.

The plaintiff, Mrs. Jennie M. Oppenheim, thereupon brought this action against Mrs. Martha Kridel, the guilty party, alleging in her complaint:

‘That the defendant, well knowing said Myron thereupon brought this action against Mrs. maliciously and willfully intending to injure the plaintiff and deprive her of the comfort, society, aid, assistance, and support of her said husband, and to alienate and destroy his affection for her, heretofore, and on or about the 12th day of January, 1919, and on divers other days and times during the last four years last past, and before the commencement of this action, at the premises No. 207 West Fifty-Sixth street, borough of Manhattan, city of New York, and at divers other premises and places, wrongfully and wickedly, and without the privity or connivance of plaintiff, debauched and carnally knew the said Myron H. Oppenheim, by means whereof the affection of the said Myron H. Oppenheim for the said plaintiff was wholly alienated and destroyed, and by reason of the premises the plaintiff has wholly lost the affection, comfort, society, aid, assistance, and support of her said husband.’

On the trial the justice refused to consider the case as one for alienation of affections and submitted it to the jury solely as an action for criminal conversation. He charged:

‘You are not to concern yourselves with any question as to whether or not the defendant alienated the affections of plaintiff's husband. There is now no such question in this case.’

He further said:

‘It is only necessary for the plaintiff to prove her marriage and the criminal intercourse between her husband and the defendant, and that such criminal intercourse was without her consent.’

The jury, however, were permitted to consider the loss of the husband's affections and his society and the mental anguish and disgrace sustained by the plaintiff, if any, on the question of damages.

On appeal the judgment for the plaintiff, entered upon the verdict of a jury in her favor, was reversed by a divided court, and the complaint dismissed under a ruling that an action for criminal conversation could not be maintained in this state by a wife. We have arrived at the conclusion, after a full review of the authorities, that, whatever may have been the rights of the wife in this particular under ancient law, there is no reason or law against her maintaining such an action to-day so long as the husband may do so.

At common law the wife had no cause of action against a woman for alienating the affections of her husband or for the act of adultery committed with him known by the technical name of an action for criminal conversation. The husband could bring such action against a man for enticing away the affections of his wife or for committing adultery with her. Some of the reasons assigned as the basis of the action by the husband for criminal conversation sound somewhat strange in our ears to-day. The gist of the action was the possibility that by the infidelity of a wife the husband might be called upon to support illegitimate children, or the legitimacy of his own offspring be cast into doubt. The husband, so it was said, had a property in the body, and a right to the personal enjoyment, of his wife, for the invasion of which right the law permitted him to sue as husband. The wrongful act was treated as an actual trespass upon the marital rights of the husband, although the consequent injury to him was on account of the corruption of the body and mind of the wife. Tinker v. Colwell, 193 U. S. 473-483, 24 Sup. Ct. 505, 48 L. Ed. 754. These old authorities and reasons have carried the respondent to the logical conclusion which he states in his brief as follows:

‘The husband's cause of action is based upon his proprietary right in the person of his wife. * * * The assertion that husband and wife are now equal in the eyes of the law has no bearing on the cause of action for criminal conversation, which was predicated upon the possessory right of the superior being in the body of the inferior.’

The basis for some of these apparently harsh reasons mentioned in the early common law arose out of forms of action and difficulties in procedure. They were written into the law at a time when forms of action were rigid and limited, and fictitious reasons were sought to justify relief under existing, but inappropriate, forms. The adultery was treated as an assault upon the person of the husband. This search for a remedy was referred to as follows:

‘The assault vi et armis is a fiction of the law, assumed at first, in early times, to give jurisdiction of the cause of action as a trespass, to the courts, which then proceeded to permit the recovery of damages by the husband for his wounded feelings and honor, the defilement of the marriage bed, and for the doubt thrown upon the legitimacy of children.’ Tinker v. Colwell, 193 U. S. 473, 481, 24 Sup. Ct. 505, 506 (48 L. Ed. 754).

Barring the fictions which apply only to procedure, whatever reasons there were for giving the husband at common law the right to maintain an action for adultery committed with his wife exist to-day in behalf of the woman for a like illegal act committed with her husband. If he had feelings and honor which were hurt by such improper conduct, who will say to-day that she has not the same, perhaps even a keener, sense of the wrong done to her and to the home? If he considered it a defilement of the marriage bed, why should not she view it in the same light? The statement that he had a property interest in her body and a right to the personal enjoyment of his wife are archaic, unless used in a refined sense worthy of the times, and which give to the wife the same interest in her husband. The fiction of assault, whereby courts were given jurisdiction, has long since vanished, except for historical interest. The danger of doubt being thrown upon the legitimacy of the children, which seems to be the principal reason assigned in all the authorities for the protection of the husband and the maintenance of the action by him, may be offset by the interest which the wife has in the bodily and mental health of her children when they are legitimate. Science to-day teaches us the dire consequences which sometimes follow promiscuous intercourse by a man. It is common knowledge that the sins of the father are sometimes visited, not only upon the children, but upon the wife, in the resultant diseases contracted through breaches of the marriage contract. The husband must not have discredit thrown upon the legitimacy of his children. The wife should have no doubt about the health and cleanliness of her husband or of her offspring. Legitimacy is important. Children of sound mind and body are equally as important.

It is said in this case that the affections of the husband and wife had already been aliented, and that the defendant could cause the wife no harm by her illegal relations with the husband, as the husband had ceased to live with the wife and his love for her had already vanished. Such a proposition loses sight of the fact that the parties were still husband and wife, the marriage bonds had not been dissolved, and that there was always the possibility of reconciliation rendered perhaps too remote by the defendant's illicit relationship.

[2] So far as I can see, there is no sound and legitimate reason for denying a cause of action for criminal conversation to the wife while giving it to the husband. Surely she is as much interested as the husband in maintaining the home and wholesome, clean, and affectionate relationships. Her feelings must be as sensitive as his toward the intruder, and it would be mere willful blindness on the part of the courts to ignore these facts. Both the courts of this state and the statutes have recognized this change in the status, rights, and privileges of a married woman. As stated before, the common law gave a married woman no action either for alienation of affections or for criminal conversation. Yet this court has recognized that under the statutes giving her the power to maintain actions in her own name she may now sue another woman for alienating the affections of her husband. Bennett v. Bennett, 116 N. Y. 584, 23 N. E. 17,6 L. R. A. 553. It is true that this case was not decided upon the theory that the Married Women's Acts of 1860 (Laws 1860, c. 90) and of 186...