Young v. Young

• Decision Date: 09 June 1938
• Docket Number: 3 Div. 256.
• Citation: 236 Ala. 627,184 So. 187
• Parties: YOUNG v. YOUNG.
• Court: Alabama Supreme Court

184 So. 187

236 Ala. 627

YOUNG v. YOUNG.

3 Div. 256.

Supreme Court of Alabama

June 9, 1938

Rehearing Denied Oct. 6, 1938.

Further Rehearing Denied Nov. 10, 1938.

Appeal from Circuit Court, Lowndes County; A. E. Gamble, Judge.

Action for damages by Cora Lou Young against Hilda J. Young. From a judgment of nonsuit, plaintiff appeals.

Affirmed.

Powell & Hamilton, of Greenville, for appellant.

Hill Hill, Whiting & Rives, of Montgomery, for appellee.

KNIGHT Justice.

In support of the application for rehearing in this cause the appellant's counsel has filed very earnest and elaborate briefs. In the light of these extensive arguments, we have again carefully considered the Legislative Act now for the first time before the Court. The title of the Act reads "To abolish causes of action for alienation of affections, criminal conversation, seduction of any female person of the age of 21 years or over, and breach of contract to marry." General Acts 1935, p. 780.

The enactment under this title, so far as here important, is embodied in one sentence, which reads: "All civil causes of action for alienation of affections, criminal conversation and seduction of any female person of the age of 21 years or over, and all causes of action for breach of contract to marry are hereby abolished." Section 1.

Further provisions of the statute deal with the same causes of action which had already accrued, or which may accrue under the existing contracts of marriage.

Clearly the quoted sentence abolishes certain causes of action under existing law, designated by the usual legal terminology. Four classes of action are included.

The point of divergence is in the meaning and application of the phrase "of any female person of the age of 21 years or over." Appellant argues this provision refers to and limits each of the causes of action theretofore listed.

To make plain this contention, when written out in full, the statute would read: "All civil causes of action for alienation of affections of any female person of the age of 21 years or over, all civil causes of action for criminal conversation of (with) any female person of the age of 21 years or over, all civil causes of action for seduction of any female person of the age of 21 years or over, and all causes of action for breach of contract to marry, are hereby abolished."

Such construction admittedly restricts the Act to a very narrow and limited field of operation. It would leave unaffected all actions on the part of a wife of any age for the alienation of the affections of her husband, and all actions for criminal conversation with her husband. It would abolish all such actions by the husband where the wife was of the age of 21 years or over.

Actions for alienation of affections and for criminal conversation are both based upon the marriage relation--actions for the loss of consortium between the spouses from the wrongful acts of others. Alienation of affections is the robbing of husband or wife of the conjugal affection, society, fellowship and comfort which inheres in the normal marriage relation. Criminal conversation is the defilement of the marriage bed, sexual intercourse of an outsider with husband or wife, a breaking down of the covenant relation to "keep thee only unto him or her so long as you both shall live."

By the ancient common law both these actions were limited to the husband alone.

The emancipation of married women by modern legislation, conferring upon them equality in personal and property rights, led to equality of right in the protection of the marriage relation. So that, in modern England and in most American States a cause of action for alienation of affections or criminal conversation is recognized in favor of husband or wife on a basis of equality. 30 C.J. 1118, § 972; p. 1119, § 973; p. 1153, § 1032; p. 1154, § 1054; 13 R.C.L. p. 1458, § 507; p. 1459, § 508; p. 1485, § 535; p. 1487, § 537.

This was the law of Alabama at the time of the passage of this act, notwithstanding a statute expressly conferred on the husband a cause of action for criminal conversation, making no mention of the wife. Code, § 5672; Parker v. Newman, 200 Ala. 103, 75 So. 479; Stephenson v. Stephenson, 213 Ala. 545, 105 So. 867.

Appellant's construction of this statute would strike down such actions in favor of the husband, unless the wife was under 21 years of age, but leave all actions for alienation of the husband's affections, or for criminal conversation with him, unaffected. In other words, it would create the same inequality in favor of the wife which the ancient common law gave to the husband.

Neither the wording, nor the reasons for the passage of this act, warrants any such construction.

Behind the husband's right to sue for criminal conversation with his wife is the hazard of spurious offspring to be fathered and supported.

To impute to the legislature an intent to strike down such cause of action by the husband, but leave open to the wife a cause of action against another woman for criminal conversation with her husband is wholly unwarranted.

The well known reason for striking down the causes of action named in the act, all growing out of relations between the sexes, was in response to a public sentiment, after wide discussion, to the effect that such actions had been so abused, made the means of exploitation and blackmail, that the existence of such causes of action had become of greater injury than of benefit to society. That the legislature regarded these abuses as limited to the male sex, we are not prepared to assert.

The first three causes of action dealt with by the statute are actions ex delicto. The statute abolishes all civil causes of action therefor, leaving all criminal causes of action for the redress of such wrongful acts still in force. They are listed in one series for this purpose. The action for breach of contract of marriage is per se a civil action ex contractu, and,...