Turner v. Heavrin

• Decision Date: 15 November 1918
• Citation: 206 S.W. 23,182 Ky. 65
• Parties: TURNER v. HEAVRIN.
• Court: Kentucky Court of Appeals

206 S.W. 23

182 Ky. 65

TURNER v. HEAVRIN.

Court of Appeals of Kentucky.

November 15, 1918

Appeal from Circuit Court, Ohio County.

Action by Anna Lee Turner against Mary Heavrin. Judgment of dismissal, and plaintiff appeals. Reversed and remanded, with instructions.

J. F Gordon, of Madisonville, and H. P. Taylor, of Hartford, for appellant.

Glenn &amp Simmerman and W. H. Barnes, all of Hartford, Ben D. Ringo, of Owensboro, and A. D. Kirk, of Hartford, for appellee.

MILLER J.

This is an action for damages by Anna Lee Turner, a married woman against Mary Heavrin. The petition, as amended, stated two grounds of action against the defendant: (1) Her alienation of the affections of plaintiff's husband; and (2) her criminal conversation with him. The plaintiff, however dismissed so much of her petition as sought damages for the alienation of the affections of her husband, and relied solely upon so much of her petition as sought a recovery for criminal conversation. The plaintiff alleged, in substance, that the defendant debauched and carnally knew her husband, thereby alienating his affections and depriving her of his comfort, society, and support. The circuit court dismissed the petition, and the plaintiff appeals.

So the only question presented upon this appeal is this: Can a married woman maintain an action against another woman for having had criminal conversation with the married woman's husband? The common law unequivocally answered the question in the negative. 21 Cyc. 1627; 13 R. C. L. p. 1487. The question is, however, one of first impression in this jurisdiction. There can be no doubt about the wife's right to maintain an action for the alienation of her husband's affections; and that right is thoroughly recognized in this jurisdiction. Deitzman v. Mullin, 108 Ky. 610, 57 S.W. 247, 50 L. R. A. 808, 94 Am. St. Rep. 390; Scott v. O'Brien, 129 Ky. 1, 110 S.W. 260, 16 L. R. A. (N. S.) 742, 130 Am. St. Rep. 419; Merritt v. Cravens, 168 Ky. 155, 181 S.W. 970, L. R. A. 1917F, 935. And in Merritt v. Cravens, supra, which was an action by the husband solely for the alienation of his wife's affections, there is a dictum to the effect that the law affords two separate and distinct remedies by which "either spouse" may recover damages which they might suffer by reason of the wrongful invasion of any of the marital rights, and that these remedies are a suit for alienation of affections and a suit for criminal conversation. It is clear, however, that so much of that opinion as might be said to authorize the wife to maintain an action for criminal conversation was beyond the record and wholly unnecessary for its decision. That case, however, fully recognized the distinction between the two classes of actions.

In its general and comprehensive sense, the term "criminal conversation" is synonymous with "adultery"; but in its more limited and technical signification, in which it is here to be considered, it may be defined as adultery in the aspect of a tort. A fundamental right which flows from the relation of marriage, and one which the wellbeing of society requires should be maintained inviolate, is that of exclusive marital intercourse which each acquires with the other. From this it follows that, whenever either party commits adultery, he or she commits a trespass upon the rights of the other; and from time immemorial the law has given the husband a right of action for damages against a seducer of his wife. But at common law the wife had no such right, though in natural justice there seems to be no good reason why her right to maintain an action against the seducer of her husband should not be as broad as his right of action against her seducer. If one had the right to sue, one would naturally say the other had the same right. But, as above stated, the common law has never seen fit to accord the wife the redress which it accorded to the husband. All the commentators upon the common law recognize the right of the husband to maintain an action for crim. con. as exclusively the right of the husband. In 3 Blackstone, star page 139, it is said:

"Adultery or criminal conversation with a man's wife, though it is, as a public crime, left by our laws to the coercion of the spiritual courts, yet, considered as a civil injury (and surely there can be no greater), the law gives a satisfaction to the husband for it by action of trespass vi et armis against the adulterer, wherein the damages recovered are usually very large and exemplary."

The reason for this distinction against the wife rested, not so much upon any principle of abstract right, as in the subservient relation which the wife occupied at the common law. The husband had a property in his wife's services, and it is upon the loss of this that his right of recovery was formerly placed. But, the wife having no property right in the services of her husband, she could not maintain the action. In 3 Blackstone's Commentaries, 143, the reason for this denial to an inferior is stated as follows:

"The inferior hath no kind of property in the company, care, or assistance of the superior, as the superior is held to have in those of the inferior, and therefore the inferior can suffer no loss or injury. The wife cannot recover damages for beating her husband, for she hath no separate interest in anything during her coverture."

Moreover, at common law, in order for a wife to bring an action, her husband must consent to and be joined as a party plaintiff, and whatever damages she might recover would immediately become his property, since the law could not indulge such an indecency as that a man should so profit by his own wrong. 8 Am. & Eng. Enc. of Law (2d Ed.) 261. The rule is stated by Bouvier as follows:

"The wife cannot maintain an action for criminal conversation with her husband; and for this, among other reasons, because her husband, who is a particeps criminis, must be joined with her as plaintiff." Dict. verb. "Crim. Con."

The great weight of authority is to that effect, although in some jurisdictions, in which it was conceived that the denial of the right to the wife rested principally upon the question of parties and procedure, a different view has been taken since the adoption of the modern married women's acts, authorizing married women to sue alone, and to own and control the recovery. The general line of reasoning which denied the wife the right to maintain the action was stated in Doe v. Roe, 82 Me. 503, 20 A. 83, 8 L. R. A. 833, 17 Am. St. Rep. 499, decided in 1890, as follows:

"The question is whether such an action is maintainable. For such a wrong the law does not leave the injured wife without redress. She may obtain a divorce and a restoration of all her property, real and personal, and in addition thereto alimony or an allowance out of her husband's estate. And the law will punish the guilty parties criminally. But does the law, in addition to these remedies, secure to her a right of action to recover a pecuniary compensation from her husband's paramour? We think not. We have been referred to no reliable authority for the existence of such a right, and we can find none. It is true that a husband may maintain an action for the seduction of his wife. But such an action has grounds on which to rest that cannot be invoked in support of a similar action in favor of the wife. A wife's infidelity may impose upon her husband the support of another man's child. And what is still worse, it may throw suspicion upon the legitimacy of his own children. A husband's infidelity can inflict no such consequences upon his wife. If she remains virtuous, no suspicion can attach to the legitimacy of her children. And an action in favor of the husband for the seduction of his wife has been regarded as of doubtful expediency. It has been abolished in England. * * * And the trials we have had in this country of such actions are not very encouraging. They seem to be better calculated to inflict pain upon the innocent members of the families of the parties than to secure redress to the persons injured. And we fear such would be the result if such actions were maintainable by wives. Such a power would furnish them with the means of inflicting untold misery upon others with little hope of redress for themselves. At any rate, we are satisfied that the law never has, and does not now, secure to wives such a power, and if it is deemed wise that they should have it, the Legislature and not the court must give it to them."

The reasoning of this opinion seems to rest upon the unsubstantial distinction that, because the law gives a right of action in such cases to the husband on account of his possible greater injury, it should not give any redress to the wife for a similar act, because her injury is of less magnitude, and her right to sue might be abused. Evidently, pursuant to the supposed public policy as expressed in the foregoing opinion, the action for criminal conversation was abolished in England by section 59 of the Matrimonial Causes Act, 1857 (20 & 21 Vict. c. 85). But that statute provided that the husband, in a proceeding for a dissolution of the marriage, or for a judicial separation on the ground of the wife's adultery, might claim and recover damages from the co-respondent; or he might, by petition, claim damages for adultery with his wife, without demanding other relief.

Again in Kroessin v. Keller, 60 Minn. 372, 62 N.W. 438, 27 L. R. A. 685, 51 Am. St. Rep. 533, decided in 1895, the Supreme Court of Minnesota, in denying the right to the wife to maintain an action for criminal conversation, stated the reason for the rule in the following language: "We are quite safe in saying that at common law no such action could have been maintained. The injured husband alone...