Warren v. Warren

• Citation: 89 Mich. 123,50 N.W. 842
• Court: Supreme Court of Michigan
• Decision Date: 21 December 1891
• Parties: WARREN v. WARREN et al.

50 N.W. 842

89 Mich. 123

WARREN v. WARREN et al.

Supreme Court of Michigan

December 21, 1891

Error to circuit court, Van Buren county; GEORGE M. BUCK, Judge.

Action in trespass by Stella B. Warren, an infant, by her next friend, against Hugh Warren and others, for alienating the affections of her husband, George L. Warren. Defendants had judgment by direction of the court, and plaintiff brings error. Reversed, and new trial granted.

Wm. N. Cook and Osborn & Mills, for appellant.

A H. Chandler and Heckert & Chandler, for appellees.

MORSE, J.

The plaintiff brings this suit, alleging that the defendants have wrong-fully combined together and alienated the affections of her husband, George L. Warren, from her, and caused him to desert and abandon her, and she claims damages therefor. The court below held that a married woman in this state cannot maintain an action of this kind. The correctness of this holding is the only question to be determined. In Mitchell v. Mitchell, 49 Mich. 68, 12 N.W. 914, by an equal division of this court, the judgment of the court below against the wife was affirmed. In that case it appears that the husband was a minor when married. No opinions were filed in the case, and we are therefore not informed as to the reasons for such affirmance. I shall not consider the case as an adjudication of the important question here presented, but shall examine it as if it were a new question before this court. It seems from the brief of counsel in Mitchell v. Mitchell, supra, that the question of the minority of the husband, and the right of his father, who was the defendant, to his services and society, was made a prominent point in the defense of the suit, and this may have been the controlling reason of the decision. No such question is in this case. The right of a wife to recover damages for the alienation of her husband's affections, and the consequent loss of his society, assistance, and support under the law of this state, is the naked issue involved here. I have no hesitation in holding that she has such right. I do not think it material whether or not she had this right under the common law. In the adjudicated cases there is a difference of opinion as to her common-law right, some of the courts holding that, "as the wife had no right of property * * * in any damages recovered on her account, for any cause, neither could she have any right of action to recover them." Duffies v. Duffies, (Wis.) 45 N.W. 523; Westlake v Westlake, 34 Ohio St. 621; Doe v. Roe, 82 Me. 503, 20 A. 83; Logan v. Logan, 77 Ind. 558; Mehrhoff v. Mehrhoff, 26 F. 13. In New York it is held that it was considered at the common law that the damages for personal injuries belonged to her, as the husband could not sue without joining his wife. If the damages were recovered before the death of the husband. the money so collected became his property; but, if he died before the suit was determined, the right of action survived to the wife, and the damages recovered belonged to her. From this it is deduced that the right of action belonged to her. Bennett v. Bennett, 116 N.Y. 584, 23 N.E. 17. Under the statute of this state relative to the rights of married women, and the decisions of our own courts in relation thereto, the right of the wife to bring this action, as well as all other suits to redress her personal wrongs, seems to me to be perfectly clear. "That the real and personal estate of every female, acquired before marriage, and all property, real and personal, to which she may afterwards become entitled by gift, grant, inheritance, devise, or in any other manner, shall be and remain the estate and property of such female, and shall not be liable for the debts, obligations, and engagements of her husband, and may be contracted, sold, transferred, mortgaged, conveyed, devised, or bequeathed by her, in the same manner and in the like effect as if she were unmarried." How. St. � 6295. "Actions may be brought by and against a married woman in relation to her sole property, in the same manner as if she were unmarried; and in cases where the property of the husband cannot be sold, mortgaged, or otherwise incumbered without the consent of his wife, to be given in the manner prescribed by law, or when his property is exempt by law from sale on execution or other final process issued from any court against him, his wife may bring an action in her own name, with the like effect as in cases of actions in relation to her sole property as aforesaid." How. St. � 6297. Under these statutes it has been held that a wife is entitled to and may sue for and recover in her own name damages for her personal injuries and suffering from assault and battery, (Berger v. Jacobs, 21 Mich. 215; Hyatt v. Adams, 16 Mich. 179-197;) and for injuries to her person through the negligence of another, ( Railroad Co. v. Coleman, 28 Mich. 440;) also for slander, (Leonard v. Pope, 27 Mich. 145.) If the damages in such cases are her individual property, as expressly held in Berger v. Jacobs, I cannot see why, in reason and on principle, the damages arising from the loss of the society and support of her husband are not also her individual property. Surely the support and maintenance which she is entitled to from her husband, and which she loses by his abandonment, is capable of ready and accurate measurement in dollars and cents, and can be said to be a property right, which she has lost by the wrongful interference of the defendants. The loss of the society of her husband, and her mental anguish and suffering, is not so easily ascertained when compensation is sought, and to be gauged by a money standard; but damages for such anguish and suffering are given, as best the jury can, and are permissible, in most actions of torts.

Under the civil damage law, which gives a right of action to the wife who has been injured "in her person or property means of support. or otherwise" by any intoxicated person, it has been held in this state that she might recover damages for being excluded from society by her husband's intoxication, and for her mental suffering on account of such drunkenness. Friend v. Dunks, 37 Mich. 25. There has never been any reason urged against the right of the husband to sue for the loss of the consortium of his wife. And if, as shown, the wife is now, under either the liberal letter or spirit of our marriage laws, entitled, as of her own property, to the damages arising from her personal injuries, the injuries to her body or mind, there can be no good reason why she cannot sue for and recover damages for the loss of the consortium of her husband, that does not equally and as well apply to the suit of the husband on account of the loss of her...