Oppenheim v. Kridel

Merrell, J. (dissenting):

The action was brought to recover damages for alienation of the affections of plaintiff’s husband by the defendant, and also to recover damages for criminal conversation. It having appeared upon the trial to the satisfaction of the presiding justice that the plaintiff and her husband had not lived or cohabited together as husband and wife for some years prior to the alleged sexual intercourse between the defendant and plaintiff’s husband, the court instructed the jury that the plaintiff could not recover against the defendant for alienation of her husband’s affections, but that if the jury deemed the evidence sufficient there might be a recovery on the part of the plaintiff for damages against the defendant for criminal conversation between the defendant and plaintiff’s husband. The jury at the trial rendered a verdict in plaintiff’s favor for $40,000, which, upon motion to set aside as excessive, was reduced by the trial court to $20,000, upon which the judgment appealed from was entered.

The sole question involved upon this appeal is as to whether or not a wife may maintain an action against her husband’s paramour for criminal conversation.

*315It is the contention of the defendant, appellant, that such action does not lie at common law, the appellant contending that the gist and foundation of such an action is the injury suffered by the husband because of the infidelity of his wife in that the husband may be called upon to support the offspring of other men, and that doubt may be cast upon the legitimacy of the offspring of the marriage between his wife and himself. Unquestionably the question of legitimacy of offspring is an important element as the basis of an action for criminal conversation, but it is not the only basis of such action, whether the seduction is of the plaintiff’s wife or husband, as the injury to the feelings and mental anguish suffered by the wronged party constitutes a sufficient basis for the allowance of damages.

Counsel for the appellant cites no case in this State since the passage of the various statutes granting married women the same rights of action as though they were unmarried where the courts have held that an action to recover damages for criminal conversation could not be maintained by the wife. In some of the States the courts have so held, while, I think, in a majority of the States the courts have inclined to an opposite view. In 8 American and English Encyclopaedia of Law (2d ed. p. 261) it is said:

“ As regards the husband, from time immemorial the law has given him a right of action for damages against the seducer of his wife.

But as regards the wife, though in natural justice no reason exists why her right to maintain an action against the seductress of her husband should not be coextensive with his right of action against her seducer, yet the common law has never seen fit to accord to her the redress which it affords him.

“ The reason of this distinction must, it seems, be discovered not in any principle of abstract right, but in the subservient relation which the wife occupied at the common law. The husband had a property in the wife’s services, and it is upon the loss of these that his right of recovery was formerly placed; but the wife had no property in the services of her husband and so could maintain no action. Moreover, at common law, in order for her to bring an action, the husband must consent to and be joined as a party plaintiff, and furthermore, as whatever damages she might recover would immediately become his property, the law could not tolerate such an indecency as that a man should so profit by his own wrong.

But the tendency of modem thought is to abrogate the idea of superior and inferior from the relation of husband and wife, and as, under the statutes which have in recent years been passed *316in the various States, married women are permitted to sue independently of their husbands and to hold separate property, the reasons for the distinction would seem no longer to be tenable, and it has been held that under such statutes a married woman may maintain an action for criminal conversation.”

The leading case in this State wherein the right of a married woman to sue the paramour of her husband for damages was considered is Bennett v. Bennett (116 N. Y. 584). . That action was an action to recover for alienation of affections, but the argument in the very learned opinion of Judge Vann in that case is equally applicable to the situation of a plaintiff wife in an action for criminal conversation. In comparing the relative rights of a husband and wife Judge Vann, in the course of his opinion, states (at p. 590): “ * * * As the wrongs of the wife are the same in principle and are caused by acts of the same nature as those of the husband, the remedy should be the same. What reason is there for any distinction? Is there not the same concurrence of loss and injury in the one case as in the other? Why should he have a right of action for the loss of her society unless she also has a right of action for the loss of his society? Does not the principle that ‘ the law will never suffer an injury and a damage without a remedy ’ apply with equal force to either case? Since her society has a value to him capable of admeasurement in damages, why is his society of no legal value to her? Does not she need the protection of the law in this respect at least as much as he does? Will the law give its aid to him and withhold it from her? ”

In the course of his opinion Judge Vann further says: “ The cause of action for a personal injury to a married woman, whether committed before or after marriage, belonged to her at common law, or else it would not survive to her upon the death of her husband. * * *

“It is clear, therefore, that at common law the right of action for a tort committed upon a married woman belonged to her, and it is in the light of this principle that the full significance of section 450 of the Code becomes apparent. This section recognizes the separate existence of the wife to the broad extent of authorizing her to sue generally in her own name. By enabling her to prosecute as if she were single, it removed the only obstacle in the way of a personal assertion of her right in this regard. She had a right of action for any actionable injury before, but she could not set the law in motion unless her husband joined. When the Legislature provided that she could sue in her own name, without this inconvenient formality, it cut off the right of the husband and permitted her to prosecute and recover for herself.”

*317In conclusion, Judge Vann says: We think the judgment appealed from should be affirmed upon the ground that the common law gave the plaintiff a right of action, and that the Code gave her an appropriate remedy.” ,

It seems to me the whole situation is summed up in Bennett v. Bennett (supra). By a fiction of the common law a husband and wife were deemed to be one; the wife was the husband’s property; her earnings belonged to him; he was entitled to her services; she had no right of action for a tort against her, althoúgh he could maintain such an action; she was not interested in any damages in any action for such tort; she had no right to bring action, save with the consent of her husband. All of this has been removed by the various acts enabling married women to sue as though single. The Legislature. having removed the disability of the married woman to sue in her own name, irrespective of her husband, and to recover upon any cause of action, and to enforce any right of property, no good reason exists why she should not have the same right to sue a person who has seduced her husband and caused her disgrace and mental suffering, as the husband would have to sue the person who had brought like suffering upon him. The result of criminal conversation is a personal injury to the wife as well as to the husband.

Section 57 of the Domestic Relations Law, concerning the “ Right of action by or against married woman for torts,” provides: “ A married woman has a right of action for an injury to her person, property or character or for an injury arising out of the marital relation, as if unmarried.”

By section 37-a of the General Construction Law (as added by Laws of 1920, chap. 917; formerly Code Civ. Proc. § 3343, subd. 9), “Personal injury” is defined to include libel, slander, criminal conversation, seduction, etc. Thus the Legislature has not only removed every obstacle which formerly existed at common law preventing the wife from seeking redress for personal injury suffered by her, but it has expressly provided that criminal conversation is a personal injury. Reading these statutory provisions together, it seems to me beyond argument that a wife may seek redress for criminal conversation between her husband and another woman.

In the District ■ of Columbia it has been distinctly held that a wife has a right of action at common law for criminal conversation with her husband, and that her conjugal rights are in principle the same as his. (Dodge v. Rush, 28 App. Cas. [D. C.] 149.) It is stated in the opinion in that case (at p. 153):

“ Appellee concedes that the husband is entitled to maintain an action for criminal conversation with his wife, and that it is. *318only necessary for him to prove in such an action the marriage and adultery as charged. But it is contended that the wife has no right of action at common law for criminal conversation with her husband.

For the reasons heretofore given for recognizing the wife’s right of action for the alienation of the affections of her husband, this contention must be denied.

While the injurious consequences of a wife’s adultery may be more far reaching because of probable difficulties and embarrassments in respect of the legitimacy of children, her conjugal rights are in principle the same, substantially, as his. Whatever the ancient doctrine may have been, modem morals and law recognize the equal obligation and right of husband and wife. Nor can the consent of either to his or her defilement affect the right of action of the injured spouse against the other wrongdoer.”

In Parker v. Newman (200 Ala. 103; 75 So. Rep. 479) the court recognized the right of the wife to bring an action to recover damages for criminal conversation with her husband. In the course of the opinion in that case (at p. 107 and p. 433) it is said: “ Most of the American courts have asserted this equality of husband and wife in the right to conjugal affection, society, and aid; and where the right of action is not sustained in her on the theory of the policy of the law to afford a remedy wherever an injury has been suffered, the right is based upon the statutes of removal of disabilities of the married woman.”

In Long v. Booe (106 Ala. 570; 17 So. Rep. 716) the court held that it was unnecessary to show that the plaintiff had suffered any pecuniary damage through the loss of his wife’s services, as he was entitled to recover for injuries to his feelings, his comfort, his pride, and his affections, and his conjugal rights.

The Court of Appeals of the State of Kentucky, as recently as 1918, held that in view of the Married Woman’s Act in that-State, which is practically the same as that in the State of Nevs York, and which empowered the wife to sue for the protection of her rights without the husband’s consent, the wife has a right of action for criminal conversation. (Turner v. Heavrin, 182 Ky. 65; 206 S. W. Rep. 23.) In that case Justice Miller of the Kentucky Court of Appeals wrote a very exhaustive opinion reviewing with great fairness the authorities of the various States, both pro and con, upon the question of the right of the wife to sue for criminal conversation with her husband. The action was very similar to the case at bar, and practically the same course was adopted with reference to the cause of action for alienation of affections and criminal conversation as that in the case here under consideration. *319The petition in that case stated two grounds of action against the defendant, first, the alienation of the affections of the plaintiff’s husband; and, second, criminal conversation with him. So much of the petition as sought damages for the alienation of the affections of the petitioner’s husband was dismissed and the petitioner relied solely upon so much of her petition as sought a recovery for criminal conversation. The Circuit Court dismissed the petition and the plaintiff appealed. Justice Miller, in his opinion, in the Kentucky Court of Appeals on the review of the action of the Circuit Court, stated:

So the only question presented upon this appeal is this: Can a married woman maintain an action against another woman for having had criminal conversation with the married woman’s husband? The common law unequivocally answered the question in the negative. * * *

“ * * * A fundamental right which flows from the relation of marriage, and one which the wellbeing of society requires should be maintained inviolate, is that of exclusive marital intercourse which each acquires with the other. From this it follows that, whenever either party commits adultery, he or she commits a trespass upon the rights of the other; and from time immemorial the law has given the husband a right of action for damages against a seducer of his wife. But at common law the wife had no such right, though in natural justice there seems to be no good reason why her right to maintain an action against the seducer of her husband should not be as broad as his right of action against her seducer. If one had the right to sue, one would naturally say the other had the same right. But, as above stated, the common law has never seen fit to accord the wife the redress which it accorded to the husband. * * *

The reason for this distinction against the wife rested not so much upon any principle of abstract right, as in the subservient relation which the wife occupied at the common law. The husband had a property in his wife’s services, and it is upon the loss of this that his right of- recovery was formerly placed. But the wife, having no property right in the services of her husband, she could not maintain the action. In 3rd Blackstone’s Commentaries, 143, the reason for this denial to an inferior is stated as follows:

“ ‘ The inferior hath no kind of property in the company, care, or assistance of the superior, as the superior is held to have in those of the inferior, and therefore the inferior can suffer no loss or injury. The wifé cannot recover damages for beating her husband, for she hath no separate interest in anything during her coverture.’

“ Moreover, at common law, in order for a wife to bring an *320action, her husband must consent to and be joined as a party plaintiff, and whatever damages she might recover would immediately become his property, since the law could not indulge such an indecency as that a man should so profit by his own wrong. * * * The rule is stated by Bouvier as follows:

“ ‘ The wife cannot maintain an action for criminal conversation with her husband; and for this, among other reasons, because her husband, who is a particeps criminis, must be joined with her as plaintiff.’ Diet., verb. ‘ Grim. Con.’

“ The great weight of authority is to that effect, although in some jurisdictions, in which it was conceived that the denial of the right to the wife rested principally upon the question of parties and procedure, a different view has been taken since the adoption of the modern married women’s acts, authorizing married women to sue alone, and to own and control the recovery.”

The learned justice then cites authorities in some of the other States denying a wife the right to maintain such action and referring to the case of Doe v. Roe (82 Maine, 503) quotes from the opinion therein at length and, commenting thereon, says: The reasoning of this opinion seems to rest upon the insubstantial distinction that because the law gives a right of action in such cases to the husband on account of his possible greater injury, it should not give any redress to the wife, for a similar act because her injury is of less magnitude, and her right to sue might be abused.” Referring to the removal of the disability by the enactment of the Married Woman’s Act in Kentucky, Justice Miller then says: “ The Married Woman’s Act of 1894 (Acts 1894, c. 76; Ky. Sts. § 2128) removes one of the common law objections to the wife’s right to maintain an action for criminal conversation by empowering her to sue, as a single woman, for the protection of her rights without the consent of her husband; and we are not much impressed with the remaining ground of the argument based upon a supposed public policy. The public policy of a State is expressed in its Constitution and statutes and in its common law as found in the opinions of its court of last resort. (Gathright v. H. M. Byllesby & Co., 154 Ky. 106, 157 S. W. 45.) But in none of these ways has this Commonwealth heretofore declared its public policy upon this question; and, this being the first opportunity this court has had of passing upon it, the question is to be decided upon sound principles and authority. If suits of this character upon the wife’s part would tend to raise family dissensions and neighborhood scandals, the same result would be obtained in case the husband *321brings such an action; and, as above stated, the fact that the husband’s injury by the infidelity of his spouse may be of the greater and more serious character is no answer to the claim upon the part of the wife to maintain a, similar action for a less injury. E she is injured at all in such a case (and no one will deny it), she should have the right to maintain her action therefor and the verdict be measured accordingly. But to say that the husband has a right to maintain an action against his wife’s paramour and that she should not have a like right of action against his paramour, is to wholly destroy that equality of right which is the boast of our institutions.”

In conclusion, Justice Miller says: “We are, therefore, of opinion that, although the common law rule prevented the wife from bringing an action for criminal conversation, it is no longer applicable under our present statute which places the wife upon an equal footing with the husband as to her right to sue for the purpose of protecting and enforcing her rights of every kind and character.”

There is little force, it seems to me, in the suggestion that because in the past the common law did not afford a wife a right to sue for criminal conversation with her husband, and because of the novelty of the action it cannot be maintained. The just right to invoke a remedy for a wrong committed upon her has always existed in the wife, although her peculiar married status denied her the right to pursue such remedy in court. Her disability has been removed by the Legislature and the enactment of statutes making a recovery for injuries suffered by her for the torts of others her own and affording her the right to pursue her remedy in court. There is, to my mind, the very strongest reason why the courts should hold that the ancient common-law prohibition against such an action by a wife has been removed.

Surely no argument against such action can be drawn from its novelty. As was said by Vann, J., in Bennett v. Bennett (116 N. Y. 584, at the bottom of p. 589):

“ It is urged that the novelty of the action is a strong argument that it cannot be upheld. The same point was urged in almost the first action brought by a husband against one who had enticed away his wife, and the answer made by the court in that case we repeat as applicable to this: ‘ This first general objection is that there is no precedent of any such action as this, and that, therefore, it will not lie. But this general rule is not applicable to the present case. It would be if there had been no special action on the case before. A special action on the case was introduced for this reason, that the law will never suffer an injury and a damage without *322a remedy, but there must be new facts in every special action on the case.’ (Winsmore v. Greenbank, Willes, 577, 580.)

Moreover, the absence of strictly common-law precedents is not surprising, because the wife could not bring an action alone, owing to the disability caused by coverture, and the husband would not be apt to sue, as by that act he would confess that he had done wrong in leaving his wife.

The actual injury to the wife from the loss of consortium, which is the basis of the action, is the same as the actual injury to the husband from that cause. His right to the conjugal society of his wife is no greater than her right to the conjugal society of her husband. Marriage gives to each the same rights in that regard. Each is entitled to the comfort, companionship and affection of the other. The rights of the one and the obligations of the other spring from the marriage contract, are mutual in character and attach to the husband as husband and to the wife as wife. Any interference with these rights, whether of the husband or of the wife, is a violation not only of a natural right, but also of a legal right arising out of the marriage relation. It is a wrongful interference with that which the law both confers and protects. 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.”

In Colwell v. Tinker (169 N. Y. 531, 536) it is said concerning the gist and basis of an action for criminal conversation: “ While loss of service is usually pleaded in this form of action, yet its real foundation is the personal injury inflicted upon the husband. The offense charged is a most grievous wrong against social order and society; it strikes at the foundations of the home and the legitimacy of offspring. The husband, who is entitled to live with his wife and enjoy her society in the marriage relation, finds himself humiliated and, to a certain extent, disgraced by a public scandal; the marriage bed is dishonored; his domestic peace and comfort are destroyed and he is subjected to great mental suffering.”

Can it be said that the criminal conversation for which the plaintiff has recovered, causing her humiliation, disgrace and mental suffering, did not as effectually strike at the foundations of the home as would a like criminal conversation on her part? Is not the wife entitled to live with her husband and enjoy his society in the marriage relation as well as the husband? Does she not find herself humiliated and disgraced by public scandal as the result of the wrong committed against her? Is the marriage bed dishonored less in the one case than in the other? Is not her *323domestic peace and comfort destroyed, and is not she subjected to great mental suffering? I am unable to distinguish between the wrongs to the husband in the one case and to the wife in the other. The question of the legitimacy of children is but one element in an action for criminal conversation. As an element of damage, the mental suffering, humiliation and disgrace which come to a virtuous woman from the knowledge that another has encompassed her husband’s wrongdoing is of little less importance. If the action for criminal conversation depended alone upon the question of legitimacy of children, then if there were no children and no prospect of children, the action for criminal conversation would not lie. It seems to me absurd to say that the action for criminal conversation is to be dependent upon the fact as to whether or not there may be offspring or the prospect of offspring of the marriage.

The appellant also urges that the recovery of the plaintiff, even as reduced by the trial court, is excessive, and that the same should be further reduced. Under all of the circumstances, the trial court, having heard the witnesses, was best able to pass upon the question of amount of the recovery, and I do not think we should interfere with his discretion in that respect.

The judgment and order appealed from should be affirmed, with costs.

Judgment and order reversed, with costs, and complaint dismissed upon the merits, with costs.