Parker v. Newman

• Decision Date: 01 February 1917
• Docket Number: 7 Div. 829
• Citation: 200 Ala. 103,75 So. 479
• Parties: PARKER v. NEWMAN.
• Court: Alabama Supreme Court

75 So. 479

200 Ala. 103

PARKER v. NEWMAN.

7 Div. 829

Supreme Court of Alabama

February 1, 1917

On Rehearing, June 11, 1917

Appeal from Circuit Court, Calhoun County; Hugh D. Merrill, Judge.

Action by Artie Newman against Carrie Parker, for damages for alienating the affections of her husband. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under section 6, Act of April 18, 1911, p. 449. Reversed and remanded.

The complaint was as follows:

"Plaintiff *** claims of the defendant *** the sum *** as damages, and avers that the defendant, on sundry dates beginning on or about the 7th day of January, 1915 contriving, wrongfully, wickedly, and unjustly intending to injure the plaintiff and to deprive her of the comfort fellowship, and assistance, support, and protection of her husband, and to alienate and destroy his affections for the plaintiff, wrongfully, wickedly debauched and carnally knew the plaintiff's husband, Olin Newman, and thereby alienated and destroyed the plaintiff's said husband's affection for her, and caused the plaintiff to be deprived of her husband's fellowship, society, aid and assistance, which she should and would have had but for the wrong committed by the defendant. And plaintiff avers that in addition to the foregoing, by reason of the said wrongs committed by the defendant, she has been degraded among her acquaintances, and has suffered great mental anguish, shame, and mortification, all to her damage as aforesaid."

The defense set up by the special pleas was that the plaintiff and her husband are still living together and copulating and have been doing so all the while, thus condoning the offense complained of.

Defendant filed interrogatories to the plaintiff on October 18, 1915, and the trial was entered upon on November 17, 1915, at which time defendant moved for a continuance because of the failure of plaintiff to answer the same.

Objections to testimony sufficiently appear from the opinion.

The following charges were refused to the defendant:

(1) "If the conduct of the defendant has not alienated the affections of the husband of the plaintiff, then your verdict should be for the defendant."

(2) "If the plaintiff has not lost the companionship nor aid nor society of her husband by reason of the conduct of the defendant, then your verdict should be for the defendant."

(3) Same as 2.

(4) "If the alleged wrongs are the result of the conduct of Olin Newman, then your verdict should be for the defendant."

(5) "If the plaintiff and her husband are now living together as husband and wife, then the jury may take this in mitigation of damages."

(6) "If the jury reasonably believe that the plaintiff and her husband are still living together as husband and wife and copulating together as such, then the verdict should be for the defendant."

(8) "If plaintiff and her husband are still living together as husband and wife, then the verdict should be for the defendant."

(9) "If the alleged wrongs of the plaintiff are the result of the misconduct of Olin Newman, and not of the defendant, then your verdict should be for the defendant."

The court gave this charge, and in doing so said:

"Of course if the wrongs which she complains of, gentlemen, are the result of the misconduct of Mr. Newman, and not--and that misconduct is not connected with anything charged in the complaint here, that misconduct of Newman's isn't any part of the misconduct charged here on account of illicit relationship with Mrs. Parker, then the plaintiff would not be entitled to recover."

S.W. Tate, of Anniston, for appellant.

Hugh Walker, of Anniston, for appellee.

THOMAS J.

This action is for the alienation of the affections of appellee's husband.

The complaint was a sufficient statement of the right of action.

Defendant had the benefit, under the general issue, of the matter sought to be specially pleaded.

The court committed no error in overruling defendant's motion for a continuance on the ground that the interrogatories were unanswered. Russell v. Bush, 71 So. 397; Berthold & Jennings Lumber Co. v. Phalin Lumber Co., 71 So. 989; Hass Lumber Co. v. Gibson, 172 Ala. 111, 54 So. 994, Ann.Cas.1913D, 497. The plaintiff had all of the thirtieth day in which to answer the interrogatories before she was in default.

It was a matter of discretion with the trial court, as to requiring the trial to proceed on the day the same was reached.

Against the right of the wife to sue for damages for alienation of the husband's affections, appellant's counsel cites Farmer v. Farmer, 86 Ala. 322, 5 So. 434, and section 2466 of the Code of 1907. The Farmer Case was for divorce, and the question of condonation of adultery was there discussed. By section 2466 of the Code there is given a right of action to the husband for adultery or criminal conversation with the wife. This, however, is no denial to the wife of a right of action for alienation of the husband's affection, if that right otherwise existed.

Of her statutory rights, section 4493 of the Code provides that the wife may sue alone at law or in equity, upon all contracts made by her or with her, or for the recovery of her separate property, or for injuries to such property, or for its rents, income, or profits, "or for all injuries to her person or reputation."

And section 4489 of the Code provides that all damages which the wife may be entitled to recover for injuries to her person or reputation is her separate property. It is thus apparent that the legislative intent was to give to the wife the right of action in such matters that had been accorded to the husband. People's Home Tel. Co. v. Cockrum, 182 Ala. 547, 62 So. 86; Town of Elba v. Bullard, 152 Ala. 237, 44 So. 412; Engle v. Simmons, 148 Ala. 92, 41 So. 1023, 7 L.R.A. (N.S.) 96, 121 Am.St.Rep. 59, 12 Ann.Cas. 740; Code, §§ 4486-4504. These statutes are declared to be remedial, and should be construed to effect the purpose of the Legislature. Knight v. Coleman, 117 Ala. 266, 22 So. 974; Hays v. Bowdoin et al., 159 Ala. 600, 49 So. 122.

In Engle v. Simmons, supra, it was held that where the defendant entered the dwelling and by threats, or rude or boisterous conduct, put the wife in fear, she may recover for the personal injury sustained. The court said:

" 'Nor does it matter, in our judgment, that the trespass was committed on property belonging to the husband. It was her home as well as that of her husband, and any unlawful entry or invasion thereof which produced physical injury to her was a wrong for which she ought to recover.' Nor is it important that no physical violence was done her person. *** The plaintiff here was in her home, and had a right to the peaceful and undisturbed enjoyment of the same, and any unlawful entry or invasion thereof, which produced physical injury to her, whether by direct personal violence, or through nervous excitement the proximate result of the wrongful acts of the defendant, was a wrong for which she is entitled to recover."

Discussing the Engle Case (Spearman v. McCrary, 4 Ala.App. 473, 58 So. 927), Judge Walker said:

"This was a case of a trespass upon the plaintiff's home. The plaintiff there had a right of action because of the trespass, and the question was as to her right to recover damages for physical injury resulting from fright caused by the circumstances of the trespass. *** The result of our examination of the authorities on the question under consideration and of the reasons advanced to support the conflicting views of different courts is that we reach the conclusion that the complaint was not subject to demurrer because of its failure to show that the plaintiff sustained any physical injury otherwise than the result of fright or mental shock." Birmingham Realty Co. v. Thomason, 8 Ala.App. 535, 63 So. 65.

These cases illustrate the construction given the statute of the wife's right of suit for injuries "to her person."

It is said to be an open question in England whether a wife has a right of action for the deprivation of her husband's society. Clark & Lindell's Torts (6th Ed.) p. 245. However, in Lynch v. Knight, 9 House of Lords Cas. 577, 589 (1861), a majority of the law lords express an opinion in favor of the existence of such a right of action. In the United States, the prevailing view is that the wife may recover for the alienation of the husband's affection, or for criminal conversation with him.

In the leading case (1889) of Foot v. Card, 58 Conn. 1, 18 A. 1027, 6 L.R.A. 829, 18 Am.St.Rep. 258, the court said:

"Inasmuch as by universal consent it is of the essence of every marriage contract that the parties thereto shall, in regard to this particular matter of conjugal society and affection, stand upon an equality, we are unable to find any support for the denial in this reason, and the right, the injury, and the consequent damage being admitted, then comes into operation another rule, namely, that the law will permit no one to obtain redress for wrong except by its instrumentality, and it will furnish a mode for obtaining adequate redress for every wrong. This rule, lying at the foundation of all law, is more potent than, and takes precedence of, the reason that the wife is in this regard without the pale of the law because of her inferiority."

In Wolf v. Frank, 92 Md. 138, 142, 48 A. 132, 52 L.R.A. 102, the cases are collected, as authority for the several grounds on which is rested the right of the wife to sue for such torts committed against her marital rights.

Most of the American courts have asserted this equality of husband and wife in the right to conjugal affection, society, and aid; and where the right of action is not sustained in her on the theory of the policy of the law to afford a...