it is held, may be allowed, though the husband is living apart from his wife,21 even though the separation be due to his fault. "The policy of the law encourages them, if living apart, to come together again. Reconciliation would or should be followed by purity in their marriage relation and happiness in their home. If, while separated, she is debauched, the hope of reconciliation is thereby greatly diminished and may be wholly extinguished." 22 "Recrimination is not a defense to this action, as in a proceeding for divorce." 28

It is usual to allege and prove alienation of affection and loss of companionship and service; but it is unnecessary to do so except by way of aggravation. "The essential injury to the husband consists in the defilement of the marriage bed, in the invasion of his exclusive right to marital intercourse with his wife and to beget his own children. This presumes the loss of the consortium with his wife, of comfort in her society in that respect in which his right is peculiar and exclusive." 2 That defendant was unaware that the woman was married is no defense,25 nor that the husband forgave the wife for this 26 or other misconduct.27 His consent to or connivance at the seduction of which he complains will bar his action,28 but not consent to or con

9924

21 Michael v. Dunkle, 84 Ind. 544, 43 Am. Rep. 100; Evans v. Evans, 68 L. J. (Prob. Adm. & Div. Div.) 70. See Prettyman v. Williamson, 1 Pennewill (Del.) 224, 39 Atl. 731; Bigaouette v. Paulet, 134 Mass. 123, 45 Am. Rep. 307. Whether there may be a renunciation of marital rights quære. See Sherwood v. Titman, 55 Pa. 77. 22 Cross v. Grant, 62 N. H. 675, 686, 13 Am. St..Rep. 607, per Smith, J.

23 Browning v. Jones, 52 Ill. App. 597, 604.

24 Bigaouette v. Paulet, 134 Mass. 123, 125, 45 Am. Rep. 307, per Allen, J. In accord, Stark v. Johnson (1908) 43 Colo. 243, 95 Pac. 930, 16 L. R. A. (N. S.) 674, 127 Am. St. Rep. 114, 15 Ann. Cas. S68. 25 Wales v. Miner, 89 Ind. 118; Lord v. Lord, [1900] L. R. 297, 67 L. J. P. 54.

26 Smith v. Hockenberry, 146 Mich. 7, 109 N. W. 23, 117 Am. St. Rep. 615, 10 Ann. Cas. 60. Cf. Smith v. Meyers, 52 Neb. 70, 71 N. W. 1006.

27 Clouser v. Clapper, 59 Ind. 548. Cf. Shannon v. Swanson, 208 Ill. 52, 69 N. E. 869.

28 Prettyman v. Williamson, 1 Pennewill (Del.) 224, 39 Atl. 731;

nivance at the wife's intimacy with other men, though the latter will go in mitigation of damages.29

In assessing damages, the jury may consider the outraged feelings of the husband, and include in its award compensation for his humiliation.30

Injury to the Wife's Person

31

At common law the husband might sue for loss of companionship and services-the result of a personal injury to the wife due to the unlawful act or omission of anotherand for such expense as her illness may have forced upon him. This right by the weight of authority he still possesses, but it has been held that, under statutes regulating her status, the married woman may sue for the diminution or destruction of her capacity to assist and serve her husband, her right of recovery being regarded as exclusive, except as to such expenses as the husband may have incurred.32 In states where the wife is given the right to her own earnings and is permitted to sue in her own name for injuries to her person, but in which the common-law right of the husband to recover for loss of services is still preserved, a distinction must be drawn between the services of the wife in the household in the discharge of her do

Morning v. Long, 109 Iowa, 288, 80 N. W. 390; Kohlhoss v. Mobley, 102 Md. 199, 62 Atl. 236, 5 Ann. Cas. S65; Bunnell v. Greathead, 49 Barb. (N. Y.) 106.

29 Sanborn v. Neilson, 4 N. H. 501.

30 Johnston v. Disbrow, 47 Mich. 59, 10 N. W. 79; Smith v. Meyers, 52 Neb. 70, 71 N. W. 1006.

31 Little Rock Gas & Fuel Co. v. Coppedge (1915) 116 Ark. 334, 172 S. W. 885; Mageau v. Great Northern Ry. Co., 103 Minn. 290, 115 N. W. 651, 946, 15 L. R. A. (N. S.) 511, 14 Ann. Cas. 551; Booth v. Manchester St. Ry., 73 N. H. 529, 63 Atl. 578; Lyons v. New York City R. Co., 49 Misc. Rep. 517, 97 N. Y. Supp. 1033. Thus the husband may recover against one who sells laudanum to the wife, knowing that she was using it as a beverage to the impairment of her health. Hoard v. Beck, 56 Barb. (N. Y.) 202; Holleman v. Harward, 119 N. C. 150, 25 S. E. 972, 34 L. R. A. 803, 56 Am. St. Rep. 672. 32 Marri v. Stamford St. R. Co., 84 Conn. 9, 78 Atl. 582, 33 L. R. A. (N. S.) 1042, Ann. Cas. 1912B, 1120. Cf. Bolger v. Boston Elevated · Ry. Co., 205 Mass. 420, 91 N. E. 3S9; Hamilton v. Great Falls St. Ry. Co., 17 Mont. 334, 351, 42 Pac. 860, 43 Pac. 713.

mestic duties, which belong to the husband, for the loss of which he may sue, and such services as she may render to another, for, since whatever she here earns belongs to her, she alone can recover for disability to perform them.33 The test of her right to damages for impairment of capacity and loss of time would therefore appear to be "whether she was in the employment of persons other than her husband on her own account or carrying on some business in her own behalf." 84

It would seem, however, somewhat illogical to hold that, though she is permitted to labor independently and retain the fruits, no allowance can be made for her diminished capacity merely because she was not in fact engaged in a separate employment at the time the injury was received.35 Alienation of Affections

Sexual intercourse is not here a necessary element, though it may constitute aggravation. "The pith of the action for the alienation of affections of the wife is the loss of her society, of consortium, by the husband without justifiable reason." 36 Nor need there have been an abandonment. "The alienation of the wife's affections, for which the law gives redress, may be accomplished, notwithstanding her

33 Townsend v. Wilmington City Ry. Co. (Del. 1907) 7 Pennewill, 255, 78 Atl. 635; City of Wyandotte v. Agan, 37 Kan. 528, 15 Pac. 529; Gregory v. Oakland Motor Car Co. (1914) 181 Mich. 101, 147 N. W. 614; Libaire v. Minneapolis & St. L. R. Co. (1911) 113 Minn. 517, 130 N. W. 8; Brooks v. Schwerin, 54 N. Y. 343.

34 Fleming v. Town of Shenandoah, 67 Iowa, 505, 508, 25 N. W. 752, 56 Am. Rep. 354; In accord, Denver & R. G. R. Co. v. Young, 30 Colo. 349, 70 Pac. 688; Central City v. Engle, 65 Neb. 885, 91 N. W. 849; Healey v. Ballantine & Sons, 66 N. J. Law, 339, 49 Atl. 511; Corbin v. City of Huntington (1914) 74 W. Va. 479, 82 S. E. 323.

35 Cf. Colorado Springs & I. Ry. Co. v. Nichols (1907) 41 Colo. 272, 92 Pac. 691, 20 L. R. A. (N. S.) 215; Withey v. Fowler (1914) 164 Iowa, 377, 145 N. W. 923.

36 Weston v. Weston, 86 App. Div. 159, 161, 83 N. Y. Supp. 528. In accord, Callis v. Merrieweather, 98 Md. 361, 57 Atl. 201, 103 Am. St. Rep. 404; Rinehart v. Bills, 82 Mo. 534, 52 Am. Rep. 385; Ireland v. Ward (1908) 51 Or. 102, 93 Pac. 932. Cf. Ex parte Warfield, 40 Tex. Cr. R. 413, 50 S. W. 933, 76 Am. St. Rep. 724 (injunction issued against conversing or associating with the wife or writing to her).

38

continued residence under her husband's roof," " for it has been well said that remaining with the husband "would rather add the provocation of insult to the keenness of suffering. It would continue before him a present, living, irritating, aggravating, if not consuming, source of grief, which even her absence might in a measure relieve." There need not have been a total alienation of affections. It is sufficient, though it be but partial. "Even though there be an estrangement between husband and wife, this does not give license to an outsider to invade that home and broaden the breach between them." 40 But an action is not maintainable where the wife has voluntarily given her affections to another, the latter having done nothing to win them. 41 It must be established that defendant is the enticer.42 As in the case of enticing, the general rule "is that parents may advise their children about their domestic affairs without incurring liability, if the advice be given in good faith and prompted by worthy motives, even though such advice results in a separation and estrangement of husband and wife." 43 Similar protection should be

87 Rinehart v. Bills, 82 Mo. 534, 538, 52 Am. Rep. 385.

88 Heermance v. James, 47 Barb. (N. Y.) 120, 126, per Potter, J. But see Houghton v. Rice, 174 Mass. 366, 54 N. E. 843, 47 L. R. A. 310, 75 Am. St. Rep. 351.

39 Fratini v. Caslini, 66 Vt. 273, 29 Atl. 252, 44 Am. St. Rep. 843. 40 Philpott v. Kirkpatrick, 171 Mich. 495, 506, 137 N. W. 232, per Stone, J.

41 There is thus a pronounced distinction between suits for alienation and criminal conversation. "In the latter the fact of adultery is all-important, and the fact of which of the guilty parties was the seducer is unimportant; while in the former the crucial issue is whether the defendant enticed the wife, alienated her affections, and injected himself between husband and wife to the destruction of their mutual happiness." De Ford v. Johnson, 152 Mo. App. 209, 214, 133 S. W. 393. Cf. White v. Ross, 47 Mich. 172, 10 N. W. 188.

42 Scott v. O'Brien (1908) 129 Ky. 1, 110 S. W. 260, 16 L. R. A. (N. S.) 742, 130 Am. St. Rep. 419 (action by wife). Cf. Saxton v. Barber (1914) 71 Or. 230, 139 Pac. 334,

43 Ratcliffe v. Walker (1915) 117 Va. 569, 85 S. E. 575, 578, per Kelly, J. In accord, Heisler v. Heisler, 151 Iowa, 503, 131 N. W. 676; Oakman v. Belden, 94 Me. 280, 47 Atl. 553, 80 Am. St. Rep. 396; Zimmerman v. Whiteley, 134 Mich. 39, 95 N. W. 989; Beisel v. Gerlach, 221 Pa. 232, 70 Atl. 721, 18 L. R. A. (N. S.) 516.

accorded to other near relatives.* 44 But even a parent may not interfere willfully and maliciously to bring about a separation.*

45

INJURIES TO THE WIFE

96. At common law the wife had no legal right to consortium. Such right is now generally recognized. But acts which would constitute a tort against the husband will not necessarily give her a cause of action; e. g., criminal conversation.

46

47

At common law no action was maintainable by the wife against one who had enticed the husband or alienated his affections. It was impossible for her to sue alone, and the husband could not well be joined to recover for an injury which he assisted in causing. But to this modern courts have answered that, "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." 48 Moreover, the technical objec

44 Cf. Miller v. Miller, 154 Iowa, 344, 134 N. W. 1058 (sister); Luick v. Arends, 21 N. D. 614, 132 N. W. 353 (plaintiff's and defendant's wives were half-sisters); Baird v. Carle, 157 Wis. 565, 147 N. W. 834 (brother).

45 Allen v. Forsythe (1912) 160 Mo. App. 262, 142 S. W. 820; Ratcliffe v. Walker (1915) 117 Va. 569, 85 S. E. 575; Jones v. Monson, 137 Wis. 478, 119 N. W. 179, 129 Am. St. Rep. 1082.

46 Westlake v. Westlake, 34 Ohio St. 621, 32 Am. Rep. 397, note; Duffies v. Duffies, 76 Wis. 374, 45 N. W. 522, 8 L. R. A. 420, 20 Am. St. Rep. 79; Crocker v. Crocker (C. C.) 98 Fed. 702.

47 See Bassett v. Bassett, 20 Ill. App. 543; Haynes v. Nowlin, 129 Ind. 581, 29 N. E. 389, 14 L. R. A. 787, 28 Am. St. Rep. 213; Hodge V. Wetzler, 69 N. J. Law, 490, 55 Atl. 49; FLANDERMEYER v. COOPER, 85 Ohio St. 327, 98 N. E. 102, 40 L. R. A. (N. S.) 360, Ann. Cas. 1913A, 983, Chapin Cas. Torts, 267; Smith v. Smith, 98 Tenn. 101, 38 S. W. 439, 60 Am. St. Rep. 838.

48 Foot v. Card, 58 Conn. 1, 8, 18 Atl. 1027, 6 L. R. A. 829, 18 Am.