Gernerd v. Gernerd

Opinion by

Mb. Justice Fell,

The right of a husband to maintain an action against one who has wrongfully induced his wife to separate from him seems not to haim been doubted since the case of Winsmore v. Greenbank, Willes, 577, decided in 1745. The right of a wife to maintain an action for the same cause has been denied, because of the. common-law unity of husband and wife and of her want of property in his society and assistance. There was certainly an inconsistency in permitting a recovery when her husband was a necessary party to the action, and she had no separate legal existence or interest, and the damages recovered would belong to him, but the gist of the action is the same in either case. There is no substantial difference in the right which each has to the society, companionship and aid of the other, and the injury is the same whether it affects the husband or the wife. Where the wife has been freed from her common-law disabilities and may sue in her own name and right for torts done her, we see no reason to doubt her right to maintain an action against one who has wrongfully induced her husband to leave her. Generally this right has been recognized and sustained in jurisdictions where she has the capacity to sue, notably in the cases of Bennett v. Bennett, 116 N. Y. 584; Foot v. Card, 58 Conn. 4; Seaver v. Adams, 19 Atl. Rep. 776 (N. H.), Westlake v. Westlake, 34 Ohio, 621; Haynes v. Nowlin, 129 Ind. 581; Warren v. Warren, 89 Mich. 123; Bassett v. Bassett, 20 Ill. App. 543; Price v. Price, 91 Iowa, 693; Clow v. Chapman, 125 Mo. 101; Mehrhoff v. Mehrhoff, 26 Fed. Rep. 13 (Kas.). The New York and Indiana cases cited overrule the earlier cases in those states in which a different conclusion had been reached. The only decisions in which we find the right denied are Duffies v. Duffies, 76 Wis. 374, and Doe v. Roe, 82 Me. 503. Of late years the right of the wife to sue has generally been maintained by text writers. It is said in Bigelow on Torts, 153 : “ To entice away or corrupt the mind and affection of one’s consort is a civil wrong for which the offender is liable to the injured husband or wife.” And in Cooley on Torts, 228, note: “We see no reason why such an action should not be supported, where by statute the wife is allowed for her own benefit to sue for personal wrongs suffered by her.” In Jaggard on Torts, p. 467, many of the cases on the subject are referred to, and the conclusion is thus stated: “ On the other hand it has been insisted that in natural justice no reason exists why the right of the wife to maintain an action against the seducer of her husband should not be coextensive with the right of action against her seducer. The weight of authorities and the tendency of the legislation strongly incline to the latter opinion.” The same proposition is stated in 1 Am. & Eng. Ency. of Law, p. 166, second edition, and in 1 Bishop on Marriage, Divorce and Separation, sec. 1358.

The defendant in this action was the father of the plaintiff’s husband, and the case was one to be carefully guarded at the trial. The intent with which he acted was material in determining his liability. It was his right to advise his son, and in so doing in good faith, and with a proper motive, he should not be regarded in the same light as a mere intermeddler. A clear case of want of justification on the part of the parents should be shown before they should be held responsible : Cooley on Torts, 265; Hutcheson v. Peck, 5 Johns. 196; Bennett v. Smith, 21 Barb. (N. Y.) 439; Huling v. Huling, 32 Ill. App. 519; Tasker v. Stanley, 153 Mass. 148; Fratina v. Caslini, 44 Am. State Rep. 850, note.

On the trial the plaintiff was held to distinct and clear proof that the defendant wrongfully and maliciously caused her husband to abandon her. Every right which the defendant could properly claim in this regard was carefully stated in a very clear and adequate charge.

The claim that the action was in effect an action for words spoken, and consequently barred by the statute of limitations cannot be sustained. It was not, either in form or in substance, an action of slander, and the words proved were only one of the many means employed by the defendant to effect his purpose.

The judgment is affirmed.