The injury sought to be redressed in this form of action is loss of consortium.
In the civil law the term consortium signified a lawful Roman marriage. Black's Law Dict. "Consortium."
In the early common law it was limited to the rights of the husband growing out of the marriage relation. In modern law it has come to denote the rights of either consort, and may be said to include those collective rights of either husand or wife resulting from and inherent in the marital union. These rights have been defined in this form of action to include the person, affection, society, and assistance. The terms "service," "aid," "fellowship," "companionship," "company," "co-operation," and "comfort" have also been employed in defining those mutual and special rights growing out of the marriage covenant. The loss of consortium is the loss of any or all these rights. 12 C. J. 532; 30 C. J. 1123, § 977; 2 Words Phrases, First Series, 1453; 13 R. C. L. 507.
In Parker v. Newman, 200 Ala. 103, 75 So. 479, the right of the wife to sue for the alienation of the affections of the husband was fully considered and declared to be the law of Alabama. We reaffirm that case, and no further discussion on that point is called for. That case involved the element of criminal conversation.
The former case of Long v. Booe, 106 Ala. 570, 17 So. 716, may be more aptly considered an action of criminal conversation. Carnal knowledge of the wife was the basis of the action, and alienation of affections averred as a consequent injury, and in aggravation of the damages.
The action for alienation of affections is the more inclusive — may charge adulterous connection as one of the injuries suffered by plaintiff in connection with other elements of loss of consortium. It is held that in either form of action averment and proof of marriage and the act of adultery with one spouse by a person having knowledge of the marriage makes out the case of the injured spouse. In such case there is by the very act an invasion of the most sacred of conjugal relations, the defilement of the marriage bed. Malice inheres in such wrongful act. Miller v. Pearce, 86 Vt. 322, 85 A. 620, 43 L.R.A. (N.S.) 332; 13 R. C. L. 1466, 1467, § 515. Hence, it is declared in both our Alabama cases above that where criminal conversation is shown there need be no other or further proof of alienation of affections. Whether this rule should apply to all such cases we need not now inquire.
We do not understand these cases to hold that no proof of alienation of affections is required in this form of action where no element of criminal conversation is involved. In the case at bar the averment is that defendant wrongfully alienated the affections of plaintiff's husband and that, as a proximate consequence of said wrongful conduct on the part of defendant, plaintiff's husband abandoned her, etc. *Page 571
It would be an anomaly in jurisprudence to hold no proof is required of this basic averment of the complaint. There was no error in the instructions of the trial court to the effect that no recovery can be had unless the defendant alienated Mr. Woodson's affections. 13 R. C. L. 1464, § 513; 30 C. J. p. 1124, § 981; Curtis v. Miller, 269 Pa. 509, 112 A. 747; Smith v. Rice, 178 Iowa, 673, 160 N.W. 6; Servis v. Servis, 172 N.Y. 438,65 N.E. 270; Powell v. Benthall, 136 N.C. 145,48 S.E. 598.
The manner of proof is a different question. If a husband and wife are living happily in their home life, and another woman designedly comes between them and causes the husband to abandon the wife, this is evidence that she has alienated his affections.
The court further instructed the jury, in effect, that malice was necessary to a recovery. Malice in law is frequently defined to be the intentional doing of a wrongful act to the injury of another. True, in this action no ill will or spite toward the wife need be shown. The wrongful conduct may arise from an improper affection entertained by one woman for another woman's husband; from love of admiration and conquest; or from mere love of adventure which takes no thought of the wrong inflicted upon another. The rule obtains here as elsewhere that one must be taken to intend the natural consequences of his or her acts.
Many cases have held that where complaint is directed against a parent or guardian, who has a natural interest in and care for the child or ward, more direct proof of malicious intent is required than where a separation is caused by a stranger.
We think the weight of authority, as well as reason, supports the view that in this action malice as above defined must appear in all cases. 30 C. J. p. 1122, § 974; Geromini v. Brunelle, 214 Mass. 492, 102 N.E. 67, 46 L.R.A. (N.S.) 465; Hodge v. Brooks, 153 Ark. 222, 240 S.W. 2; Warren v. Graham,174 Iowa, 162, 169, 156 N.W. 323; 13 R. C. L. pp. 1466, 1467, § 515; Boland v. Stanley, 88 Ark. 562, 115 S.W. 163, 129 Am. St. Rep. 114; notes, 44 Am. St. Rep. 850; 46 Am. St. Rep. 475; 46 L.R.A. (N.S.) 465; Ann. Cas. 1912C, 1180; 2 Schouler, Domestic Relations (6th Ed.) § 1335.
The same reasons, supported by the above authorities, fully sustain the charges given by the court below to the effect that the wrongful conduct resulting in the alienation of the husband's affections must be "intentional" and "designed."
The court further charged the jury that no recovery could be had if the defendant "was merely the passive object" of the husband's affections.
"Since the acts of defendant must be the procuring cause of the alienation or enticement, the general rule is that a person is not liable to whom a spouse voluntarily, without wrongful inducement, gives his or her affections." 30 C. J. p. 1125, § 983; De Ford v. Johnson, 152 Mo. App. 209, 133 S.W. 393; Nieberg v. Cohen, 83 Vt. 281, 92 A. 214, L.R.A. 1915C, 483, Ann. Cas. 1916C, 476.
"Nor can a woman be chargeable with alienating the affections of another woman's husband simply because he has become enamored of her." 13 R. C. L. p. 1465, § 513; note, 46 Am. St. Rep. 476.
The expression "passive object of affections" would be misleading in cases of criminal conversation or elopement. The mere passive submission to the embraces of the husband, or to being carried away under his dominating will, would imply an entering of defendant's will into a copartnership of wrongdoing. In the case at bar no elements of this kind enter into the issue before the jury. A careful study of the tendencies of the evidence shows little, if any, direct evidence of an encouragement of the plaintiff's husband in his infatuation. It may be said that any intentional and wrongful conduct on the part of Miss Bailey would have to be inferred from circumstances in which the husband was apparently the actor.
It is difficult to state in a mere phrase the conditions of liability in such cases. We do not think the words used in this charge would carry to a jury the idea of an intentional, quiescent encouragement of an infatuated husband. The courts seek to so administer the law as to protect, as far as may be, all those marital rights held sacred in our institutions. At the same time we should safeguard the personal right of every man or woman to a full social and business contact. To be friendly is a virtue, not a fault. To be attractive and pleasing is a natural right, we may say a primal instinct, of woman.
When confronted with a growing evidence that a married man is unduly interested, a young woman may find herself in a difficult place. A wish not to offend, to avoid a possible scene, even a sense of sympathy often invoked by the man, may impel her to remain passive, and not give him that sort of rebuff which he deserves. The safer rule of law, in the interest of justice to all concerned, is that she shall not by word or act, however veiled, intentionally and designedly alienate the husband's affections from his wife.
It remains to consider the instruction given to the jury that no recovery could be had in the case at bar unless the "defendant was the procuring or contributing cause of Mr. Woodson's leaving his wife." This instruction is in the form often approved by the authorities where the loss of consortium complained of is abandonment. 13 R. C. L. p. 1469, § 519; 30 C. J. p. 1124, § 981, and page 1125, § 982, and notes. *Page 572
"An actual physical separation of the spouses is not essential to the right of action." 30 C. J. p. 1123, § 979; Rott v. Goehring, 33 N.D. 413, 420, 157 N.W. 294, L.R.A. 1916E, 1086, Ann. Cas. 1918A, 643; 13 R. C. L. pp. 1467, 1468, § 517; Foot v. Card. 58 Conn. 1, 18 Atl 1027, 6 L.R.A. 829, 18 Am. St. Rep. 258. The spirit of this rule has been adopted in our own cases of Parker v. Newman, 200 Ala. 103, 75 So. 479, and Long v. Booe, 106 Ala. 570, 17 So. 716.
In the latter case the court, discussing the term "services" as an element of consortium, declares it to mean more than the mere labor of a servant, and quotes approvingly from Judge Cooley, saying, "It implies whatever aid, assistance, comfort and society the wife would be expected to render to or bestow upon the husband." Again (quoting another case), "the right to the conjugal fellowship of his wife, to her company, cooperation, and aid in every conjugal relation."
Whether there be criminal conversation, a complete separation, or the loss of conjugal affection, companionship and assistance, while the husband still keeps up the form of family life, in either case, there is a loss of consortium. Marriage ceases to be a union, and becomes a bondage.
In the case at bar the complaint avers a complete abandonment; the evidence without dispute sustains this averment; the verdict of the jury acquits the defendant of all legal responsibility therefor.
The question is, whether, under the pleadings and proof, there was an issue for the jury for actionable injury if defendant was not the procuring or contributing cause of the husband's leaving the wife. The complaint avers that the husband and wife lived together until October, 1920:
"That on to-wit, the date last aforesaid * * * defendant wrongfully alienated the affections of her said husband * * * and as a proximate consequence * * * said husband abandoned her." (Italics supplied).
After careful study we have concluded that the complaint counts on the alienation of affections on the occasion of the separation, October, 1920. The injury complained of must likewise be limited to the loss of consortium from and after the separation. The complaint negatives any alienation of affections prior to the date named, to wit, when they ceased to live together by reason of abandonment. The evidence of any break in the relations between the husband and wife prior to October, 1920, must be treated as in support of the charge that the affections were alienated on that occasion.
It seems correct, therefore, to say that, if defendant was not the procuring or contributing cause of the separation, she could not be responsible for the loss of consortium charged in the complaint.
We find no reversible error in the several instructions given.
The judgment of the court below is affirmed.
Affirmed.
ANDERSON, C. J., and SOMERVILLE, and THOMAS, JJ., concur.