Sims v. Sims

Decision Date11 July 1910
Citation76 A. 1063,79 N.J.L. 577
PartiesSIMS v. SIMS et al.
CourtNew Jersey Supreme Court

(Syllabus by the Court.)

Error to Supreme Court.

Action by Myra V. Sims against Winfield S. Sims and others. From an order sustaining a demurrer to the complaint (77 N. J. Law, 251, 72 Atl. 424), plaintiff brings error. Reversed and remanded.

Cortlandt & R. Wayne Parker, for plaintiff in error.

Beecher & Bedford, for defendants in error.

MINTURN, J. The suit was instituted to recover damages from defendants for maliciously enticing away the plaintiff's husband, and thereby alienating from her his affections. A demurrer was interposed upon the general ground that suit will not lie for such an injury, and the Supreme Court having sustained the demurrer, the legal question thus raised is now presented upon writ of error.

The plaintiff bases her right to sue upon an act passed in 1906 entitled "An act for the protection and enforcement of the rights of married women" (P. L. 1906, p. 525). The act provides that "any married woman may maintain an action in her own name and without joining her husband therein, for all torts committed against her, or her separate property, in the same manner as she lawfully might if a feme sole; provided, however, that this act shall not be so construed as to interfere with or take away any right of action at law or in equity now provided for the torts above mentioned." The second section provides that "any action brought in accordance with the provisions of this act may be prosecuted by such married woman separately in her own name, and the nonjoinder of her husband shall not be pleaded in any such action."

It is urged in support of the demurrer that this act created no new right of action in behalf of the married woman, and that at common law no right of action existed for the tort alleged in this declaration; and this construction of the act was adopted by the Supreme Court. The initial inquiry, therefore, must necessarily be made in the light of the fundamental rule of statutory construction, which requires us to search out the old law and the mischief that it engendered, in order to ascertain whether the remedial legislation with which we are now dealing was intended by the Legislature to apply to such a condition.

In its early stages the common law notoriously enveloped the identity of the wife and all her possessions in the personality of the husband; and as late as Wilson v. Alpaugh, 52 N. J. Eq. 589, 33 Atl. 50, the doctrine "that the rule of the common law that the husband and wife are to be regarded as one person" was held not to have been abrogated by legislation up to that period in this state.

That the right of consortium was recognized by the common law as an existing right in the married woman, however, but incapable of enforcement, owing to the common-law doctrine of identity of personality, is made clear by Blackstone, who, in his third volume, dealing with "Private Wrongs," mentions a class in which the common law, failing to provide a remedy, recognized the right of the ecclesiastical courts, or their successor, to administer redress," not "for the reformation of the party injuring, but for the sake of the party injured; to make him a satisfaction and redress for the damages which he has sustained." 3 Bl. Com. 87. Under this general topic the learned commentator treats of "matrimonial causes, or injuries respecting the rights of marriage." and says: "The suit for the restitution of conjugal rights is also another species of matrimonial causes which is brought whenever either the husband or wife is guilty of the injury of subtraction, or lives separate from the other without any sufficient reason; in which case the ecclesiastical jurisdiction will compel them to come together again." Id. 94. This recognition by the common law of the fact that the loss of consortium was an injury to the wife, and that its enforcement was her right, and the corresponding failure, on the other hand, to provide her with a legal remedy for the tort, is properly definitive of her status at common law, and places that branch of legal learning upon its proper footing.

From which it follows that if at any time the Legislature should remove the common-law impediment as to remedy, the right existing is thus made capable of enforcement under the remedial code. 21 Cyc, note 50, and cases cited.

That the common-law courts failed to find a remedy is, under the decisions, rather a recognition of the right, than a denial of its existence. For it may be said that the history of common-law procedure is largely the history of substantive rights, remediless at first for lack of a suitable writ or precedent in the Registrum Brevium, until the persistence of the demand for a remedy developed the action of trespass on the case as a general specific in consimill casu, under the provisions of the statute of Westminster H. The following cases serve also to illustrate the existence of this right at common law: Firebrace, 4 P. B. 63; Yelverton, 1 Siv. & Tr. 586; Orme, 2 Add. Ecc. 382; Reg. v. Jackson, 1 Q. B. 685.

The very helpful briefs of the learned counsel in this case instance the case of Lynch v. Knight, 9 H. L. Cas. 577; 11 Irish Jurist, 284, which is highly instructive upon this phase of the question, as illustrating the endeavor of the English judges at that time to supply a remedy for a conceded, existing right. "Can it be," inquired the Chief Justice of the Irish Queen's Bench, "that for an injury of this sort a wife can have no redress? Is it possible to sustain the proposition?" When the case was determined upon another ground in the House of Lords, Lord Campbell said: "Nor can I allow that the loss of consortium or conjugal society can give a cause of action to the husband alone; I think it may be a loss which the law may recognize to the wife as well as to the husband."

These sentiments have found expression and recognition in the adjudications of the highest courts of our states; and now it may be fairly...

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18 cases
  • Tornquist v. Perkowski
    • United States
    • New Jersey Superior Court
    • 15 Noviembre 1984
    ...of action against someone who intentionally injured her husband for the loss of his consortium was recognized in Sims v. Sims, 79 N.J.L.J. 577, 76 A. 1063 (E. & A. 1910). Fifty-five years later, the Supreme Court recognized a wife's cause of action against one who negligently caused her to ......
  • McKinney v. McKinney
    • United States
    • Wyoming Supreme Court
    • 5 Abril 1943
    ... ... in any such action." [59 Wyo. 225] Concerning this ... statutory language the New Jersey Court of Errors and Appeals ... said in Sims v. Sims, 79 N.J.L. 577, 582, 76 A ... "That ... this act was intended to confer the power upon a married ... woman to protect and ... ...
  • Ekalo v. Constructive Service Corp. of America, A--20
    • United States
    • New Jersey Supreme Court
    • 6 Diciembre 1965
    ...expressions as may be found in our State on the subject are inconclusive and not at all controlling. See Sims v. Sims, 79 N.J.L. 577, 76 A. 1063, 29 L.R.A.,N.S., 842 (E. & A. 1910); Tobiassen v. Polley, 96 N.J.L. 66, 114 A. 153 (Sup.Ct.1921); Danek v. Hommer, 14 N.J.Super. 607, 615, 82 A.2d......
  • Novak v. Kansas City Transit, Inc.
    • United States
    • Missouri Supreme Court
    • 11 Marzo 1963
    ...at common law. See 22 Michigan L.R., p. 1; contra: Eliason v. Draper, 2 Boyce, (Del.) 1, 77 A. 572, 575; Sims v. Sims, 79 N.J.L. 577, 76 A. 1063, 1064, 29 L.R.A.,N.S., 842. But even if so, such does not detract from the force of the dissenting opinion because it is 'probably idle to specula......
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