Wolf v. Frank

• Decision Date: 13 December 1900
• Citation: 48 A. 132,92 Md. 138
• Parties: WOLF v. FRANK.
• Court: Maryland Court of Appeals

48 A. 132

92 Md. 138

WOLF v. FRANK.

Court of Appeals of Maryland

December 13, 1900

Appeal from circuit court, Washington county; Edward Stake, Judge.

"To be officially reported."

Action by Amelia Frank against Mary J. Wolf. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Argued before McSHERRY, C.J., and FOWLER, BRISCOE, PAGE, BOYD PEARCE, SCHMUCKER, and JONES, JJ.

L.D Syester, for appellant.

M.L Keedy and D.W. Doub, for appellee.

BOYD J.

This suit was brought by the appellee against the appellant on March 31, 1900, by her next friend, Grafton C. Harper, but it was subsequently amended by striking out the next friend. The declaration alleges that the defendant wrongfully enticed and procured the husband of the plaintiff unlawfully, and without the consent and against the will of the plaintiff, to depart and remain absent from her home and society, whereby she lost the society, support, and protection of her husband. There are two counts which are similar, excepting the first alleges that the act complained of was done on the 25th day of December, 1899, while the second fixes no time. A demurrer was filed on the ground that the declaration stated no cause of action under the law of this state, which was overruled. During the progress of the trial, which resulted in a verdict for the plaintiff, two exceptions were taken to rulings of the court in excluding certain testimony offered by the defendant. The defendant appealed from the judgment, and the questions presented for our consideration are the rulings of the court on the demurrer and the offers of testimony embodied in the two bills of exception.

1. This is the first time a suit of this character has been before this court. There has been but little, if any, difference of opinion as to the right of a husband to sue for what is termed "the loss of consortium,"--that is, the loss of his wife's society, affection, and assistance,--and when any one, by the alienation of her affections, deprives him of his conjugal rights, he is liable to respond in damages. Indeed, such right has been sustained at least as far back as the case of Winsmore v. Greenbank, Willes, 577. The authorities are not so harmonious as to the right of the wife to sue for injuries sustained by her by being unlawfully deprived of the society, affection, etc., of the husband. But whatever differences now remain relative to it are, for the most part, as to the source from which she acquired the right, rather than whether such right exists at all. In countries and states where the common law has prevailed, members of the bench and bar have been accustomed in the past to consider the rights and liabilities of married women as they existed under its rules, and, although statutes have been passed from time to time enlarging their rights and increasing their liabilities, they have in many jurisdictions, including our own, been for the most part kept strictly within the lines fixed by legislative enactment. The tendency of modern legislation has been to greatly increase their powers, and in many states of this country such rights are conferred and such liabilities imposed on them as will probably furnish courts difficult problems to solve in determining who is the head of the house. But, whatever their legal rights have been in the past, they have, as a rule, surpassed their husbands in their capacity to appreciate and enjoy domestic happiness. When, then, the marital rights of a woman are unlawfully invaded, so as to cause this "loss of consortium," why should she not be entitled to have the wrong done her redressed by the law, as her husband would be under such circumstances? If entitled to it, refusal to grant such redress can only be excused, if at all, on the ground that, by reason of her peculiar status as a married woman, no remedy had been or could be provided her; and hence we must inquire into and determine that question.

We have seen it stated that there are only two states in this country, in which the question has arisen, where the right of a married woman to maintain such an action is still denied. Whether that be correct or not we cannot say, but in our investigation of the authorities we have only found two, Wisconsin and Maine, although most of the decisions are based on statutes. In Duffies v. Duffies, 76 Wis. 374, 45 N.W. 522, 8 L.R.A. 420, it was decided that neither at common law nor under the statutes of that state could a wife maintain an action against one enticing away her husband for the loss of his society and support; and in Doe v. Roe, 82 Me. 503, 20 A. 83, 8 L.R.A. 833, affirmed in Morgan v. Martin, 92 Me. 190, 42 A. 354, the right is denied, apparently on other grounds. The Wisconsin case is not alone as to the right to sue at common law, and the statute in force when that case arose was held not to sustain the right of action. The case of Logan v. Logan, 77 Ind. 558, cited in Duffies v. Duffies, is practically, although not in terms, overruled by Haynes v. Nowlin, 129 Ind. 581, 29 N.E. 389, 14 L.R.A. 787, so far as it affects this question, and the case of Van Arnam v. Ayers, 67 Barb. 544, is overruled by Bennett v. Bennett, 116 N.Y. 584, 23 N.E. 17, 6 L.R.A. 553. There are other cases which have denied the right of recovery, under the peculiar facts that were alleged or proven. For example, in Houghton v. Rice, 174 Mass. 366, 54 N.E. 843, 47 L.R.A. 310, and Neville v. Gile, 174 Mass. 305, 54 N.E. 841, it was held that the declarations were not sufficient, as in that state a husband could not recover for the mere alienation of the wife's affections, but there must be the loss of the wife's consortium, and a wife was in no better position than the husband. Then there are cases in which a distinction is made between suits against strangers and those against the parents of the husband or wife. If the latter act in good faith, and without malice, they are generally relieved because they are under obligation, by the law of nature, to protect their children and relieve them when in distress.

But there are many authorities which sustain this character of suit. That of Foot v. Card, 58 Conn. 1. 18 A. 1027 6 L.R.A. 829, is a leading one, and has taken a more advanced position than most of the others, although it has been frequently referred to by other courts. After referring to the right of the husband to sue, Justice Pardee, in delivering the opinion of the court, said: "Whatever inequalities of right as to property may result from the marriage contract, husband and wife are equal in rights in one respect, namely, each owes to the other the fullest possible measure of conjugal affection and society; the husband to the wife all that the wife owes to him. Upon principle, this right in the wife is equally valuable to her, as property, as is that of the husband to him." He also said: "The law will permit no one to obtain redress for wrong, except by its instrumentality, and it will furnish a mode of obtaining adequate redress for every wrong. This rule, lying at the foundation of all law, is more potent than, and it takes precedence of, the reason that the wife is in this regard without the pale of the law because of her inferiority." And again: "Wherever there is a valuable right, and an injury to it, with consequent damage, the obligation is upon the law to devise and enforce such form and mode of redress as will make the most complete reparation." After speaking of the reason of the general rule that a husband shall join in a suit for damages resulting from an injury to the person, property, reputation, or feelings to the wife, he, with great force, shows why that should not be done in a case where the husband, by reason of his own conduct, has not suffered the injury, and cannot ask for redress himself; and added: "To ask in his name would be to plant the seeds of death in the case at the outset, and the law does not compel those who have suffered wrong so to ask for redress as to insure denial. In a case of this kind the wife can only ask for damages by and for herself. The law cannot make redress otherwise than to her solely, apart from all others, especially apart from her husband;" and the conclusion is reached that, of legal necessity, the damages for the injury must be to her solely, and the suit could therefore be maintained in her own name at common law. In Lynch v. Knight, 9 H.L.Cas. 577, Lord Chancellor Campbell thought that the wife could sue with her husband. Lord Cranworth was inclined to that view, but did not feel called upon to express a decided opinion, as the case was to be disposed of on other grounds. Lords Brougham and Wensleydale thought an action would not lie. In Bennett v. Bennett, 116 N.Y. 584, 23 N.E. 17, 6 L.R.A. 553, the court said: "A remedy not provided by statute, but springing from the flexibility of the common law and its adaptability to the changing nature of human affairs, has long existed for the redress of the wrongs of the husband. As the wrongs of the wife are the same in principle, and are caused by acts of the same nature as those of the...