(dissenting). — I am constrained to dissent from the majority opinion in this case. The action is for a negligent injury to the husband of plaintiff, which it is alleged will deprive her in the- future of the maintenance, conjugal care, society, aid and protection belonging to her as a wife, since the wrongful injury to her husband has rendered him incapable of performing these duties.
A suit of such a nature, whether brought by the husband or by the wife, has no legal or logical relation to the sections of the Damage Act amendatory of the common law and providing for recovery by designated parties and the survival of such rights of action where death has been caused in the manner specified in Sections 5425, 5426 and 5427, Revised Statutes 1909, which sections are counter]¡arts of Lord Campbell’s Act. An action for loss of consortium of a living spouse, whether brought by the husband or wife, is wholly independent of any of the provisions of the statutes referring to recoveries in case of death, and is grounded, in the case of the husband, upon elemental principles of the common law, and in the case of the wife upon the same principles of the common law recognizing a personal right in her to enjoy the consortium of her husband, coupled with the provisions of the enabling statute designed to establish the right of the wife to sue for and recover (as if a femme sole), among other things, “rights of action which have grown out of any violation of her personal rights.” As to the enforcement of such causes of action, the statute adds: “Any such married woman may, in her own name and without joining her husband, as a party plaintiff, institute and maintain any action, in any of the courts of this State having juridiction, for the recovery of any such personal property, including rights of action, as aforesaid, with the same force ■ and effect as if such *633married woman was a femme sole.” [R. S. 1909, sec. 8309.] Thus, in plain language, the above statute, in express terms, gives a married woman the right to maintain an action for loss of consortium, if it be that this is a personal right vested in her by the marriage state. That the common law recognized a reciprocal right of consortium in- the wife and husband (although unenforceable on the part of the wife until the advent of statutes striking off the feudal fetters from the property of married women) is a proposition which cannot be gainsaid under the authorities hereinafter quoted. It is obvious, therefore,' that when, as has been shown above, the statute (R. S. 1909, sec. 8309) provides in express terms for the enforcement by the wife of a cause of action growing out of a violation of her personal right (established under the common law) to the society, love, protection and maintenance of her husband, it did, by that language, give her the absolute right, ever since the adoption of said statute (R. S. 1909, sec. 8309), to maintain an action like the present. The holding of the majority opinion that this action cannot be instituted by the wife would seem to be, therefore, “in the teeth” of the above quoted statute, if it be not also a practical denial of her right to due process and the equal protection of the law guaranteed by the Constitution of the United States (C. B. & Q. Ry. v. Chicago, 166 U. S. 226) which, mutatis mutandis, would entitle the husband to maintain an action for a negligent injury, depriving him of the consortium of his wife.
The opinion refiled as grounds of this dissent is, to-wit:
AUegations I. The petition alleges that the plaintiffs are husband and wife; that the defendant, the owner of an apartment building, hired the husband to do the work janitor or fireman or engineer of said building; that in the course of such employment and while using the hose, pipe or similar appliance furnished to him to be attached to the boiler, *634the same (by reason of its defective and unfit condition) burst or exploded while carrying off the steam or boiling water it was intended to conduct from the heating apparatus or boiler, and thereby temporarily blinded the husband and inflicted upon him the painful and permanent injuries described in this petition, which have disabled him to perform “any kind of work in the future;” that defendant negligently furnished this utensil to said husband and negligently required him to work in a place so ill lighted and narrow and so obstructed in front of the boiler where his duties were to be performed, that he could not escape from said place and thereby lessen the injuries suffered; that in addition to his other injuries, the “vital organs” of the husband have become affected; that the direct result of his injuries have deprived the plaintiff, his wife, of his consortium and his “care, protection, . . . companionship and society” and she will lose these in the future; that she will also be compelled to abandon “her customary work of a housekeeper” and “the earnings which she derived from such occupation ; ’ ’ wherefore she prayed , judgment of $15,000.
Defendant’s demurrers that the petition stated no cause of action, misjoinder of parties plaintiff, and the Statute of Limitations of five years, were sustained.
Plaintiffs declined to plead and duly appealed.
Demnrrer°f II. The first ground of demurrer presents the only question requiring any discussion. There was no misjoinder, for the statutes of this State expressly allow the wife, at her option, to sue with or without joining her husband. [R. S. 1909, secs. 8304, 8309, 1735.] Neither is there any merit in the claim of the bar of the statute. The plaintiff wife is a married woman and hence the five-year Statute of Limitations did not run against her. [Schneiderheinze v. Berg, 269 Mo. 263; Bobb v. Taylor, 184 S. W. 1028; R. S. 1909, sec. 1804.]
*635This leaves for decision only the question of the sufficiency of the petition to state a cause of action.
The gravamen of the action is the negligence of defendant in furnishing the husband a defective ap'pliance and an unsafe place in which to use it. Under the settled law of this State such a risk is never assumed by the servant. [Fish v. Railroad, 263 Mo. l. c. 124; George v. Railroad, 225 Mo. l. c. 407; Charlton v. Railroad, 200 Mo. l. c. 417, and cases cited.]
It necessarily follows that a case of actionable negligence is stated in the petition, and that the only question left is whether the plaintiff wife is entitled to recover therefor. She could have had no recovery when she occupied the status of a married woman at common law, for then her legal existence was merged in that of her husband. But under the Married Women’s Acts in this State, beginning’ in 1875 and culminating in 1889, with slight amendments thereafter, a wife is to all intents and purposes a legal entity distinct from her husband and capable of contracting and being contracted with and suing and being sued, as fully as if she were an unmarried woman and stii juris. While the principles of the common law, previous to her statutory-emancipation, debarred the wife from any legal redress in cases like the present, they nevertheless recognized fully the injury to her personal rights caused by the acts set forth in the petition and they affirmed such rights to be the same as those of which the husband would have been deprived had the injury in question been inflicted upon the wife (Flandermeyer v. Cooper, 85 Ohio St. 327; Holleman v. Howard, 119 N. C. 150; 13 R. C. L. par. 509, p. 1460), and though sanctioning a full right to recover in such cases on the part of the husband, they denied it to the wife, although an equal sufferer, because feudalism had decreed that she was a legal nonentity and incapable of maintaining any action for the violation of her rights as a wife caused by wrongful injuries inflicted upon her husband.
It is now the settled law that a wife may recover for the wrongful alienation of the affections of her *636husband; that the cause of action in such ease has its origin in tort and rests upon the deprivation of her personal right to his society, aid and affection. [1 Cooley on Torts (3 Ed.), p. 475; 13 R. C. L. p. 1444, par. 494, p. 1460, par. 509; Clow v. Chapman, 125 Mo. 101; Nichols v. Nichols, 147 Mo. l. c. 400; Deford v. Johnson, 251 Mo. l. c. 256; Clark v. Hill, 69 Mo. App. l. c. 544; Weber v. Weber, 113 Ark. 471; Jaynes v. Jaynes, 39 Hun, 40; Warren v. Warren, 89 Mich. 123; Gernerd v. Gernerd, 185 Pa. 233, and cases cited; 26 Am. & Eng. Ann. Cas. p. 990 et seq.] The ground of this action has been stated with signal clearness and accuracy by Black, J., in Clow v. Chapman, supra, whose reasoning has not only been fully affirmed in this State, but has been widely quoted elsewhere. That opinion was rendered in 1894, after the adoption of the Married Woman’s Acts, with reference to which it said:
“The case then turns upon the effect to he given to these statutes. . . . They give her an entirely different standing from that occupied by her at common law. Her position is more like that of a wife under the civil law. Instead of her legal existence being suspended, as incorporated into that of her husband, she is made to stand out in bold relief with a separate and distinct legal existence as toy her property and also as to her personal rights and she may enforce all such rights by proceedings in her own name independently of her husband. She is placed upon an equality with her husband in many and indeed most respects. By force of the marriage contract, husband and wife are each entitled to the society and comfort of the other, the one to as great an exent as the other.” (Italics ours). [Clow v. Chapman, supra, l. c. 106, 107.] After referring to tangible property of married women, our statute adds: “Including rights of action” arising “out of any violation of her personal rights . . . shall be and remain her separate property . . . and any such married woman may . . . maintain any action in any of the courts of this State having jurisdiction for the recovery of any such personal *637property, including rights of action as aforesaid, with the same force and effect as if such married woman was a femme sole.” (Italics ours). [R. S. 1909, sec. 8309; Rice, Stix & Co. v. Sally, 176 Mo. l. c. 129; Johnson v. Johnson, 77 So. 335.]
Each spouse has a personal right to the consortium of the other. It was not denied even at common law, nor is it questioned in any of the decisions of the present day, whose rulings do not permit a recovery by a wife for the wrongful deprivation .thereof. The injury suffered by a husband from the loss of the consortium of his wife is no more direct and immediate than that sustained by her from the loss of his society, aid and affection. Hence, there is no logical basis for the reason upon ‘which some of the adverse rulings are based, that in such cases the injury sustained by the wife is not directly and proximately caused by the wrongful act preventing her husband from giving her the means of a livelihood — which it is his duty to provide — and from performing his conjugal duties. In the edition of Cooley on Torts, supra, the following paragraph is quoted from Foot v. Card, 58 Conn. 1:
“Upon principle this right in the wife is equally valuable to her as property, as is that of the husband to him. Her right being the same as his in kind, degree and value, there would seem to be no valid reason why the law would deny to her the redress which it affords to him . . . and the right, the injury and the consequent damage being admitted, there comes into operation another rule, namely, that the law will permit no one to obtain redress for wrong, except by its instrumentality, and it will furnish a mode for obtaining adequate redress for every wrong. This rule, lying at the foundation of all law, is more potent than, and takes precedence of, the reason tliat the wife is in this regard without the pale of the law because of her inferiority.”
That doctrine is the established law in this State, as is shown in Clow v. Chapman, supra, and is rested upon the specific provisions of our Married Women’s
*638Act. It has not been followed in some other states not having similar provisions in their statutes and for that reason adhering to the notions of the common law. This was illustrated in the recent case of Nieberg v. Cohen, 88 Vt. l. c. 288, where the distinction between the statutes of that State and the rule adoped in this State upon the specific provisions of our statute, is noted in the following paragraph:
“The position of the wife will appear more fully from a reference to some cases where .the loss of the husband’s society and support was due to other causes than alienation of affection. In Clark v. Hill, 69 Mo. App. 541, the husband, a strong and healthy man, was made incurably insane by the defendant’s repeated threats of violence; and the wife brough suit for the loss of her husband’s support, comfort and society, and recovered. The ground stated was that under the statutes then existing a married woman could maintain an action in her own name- for this loss. It appears from a case cited in the opinion that the statute referred to specifically included in the rights of action which were a part of the property rights conferred, those growing out of any violation of her personal rights. So the decision may be viewed as a construction of the Missouri statute. No such clause is contained in our statute, and it is not necessary to inquire as to the effect of such a provision upon the common law rule.” Apparently there is no statute in Massachusetts of similar breadth and import to ours, for in the case of Feneff v. N. Y. Cent. Ry. Co., 203 Mass. 278, while admitting the equality of the husband and wife in respect of their reciprocal personal rights and the unquestionable right of the husband to recover for an injury to his wife causing a loss of such rights, the court adhered to the common law rule and held that the wife could not recover for personal injuries Irflicted upon her husband causing a loss of consortium. It was distinctly stated, however, in the course of the opinion, that each had equal rights arising from the conjugal relation, the language in that respect being, *639to-wit: “the right to the consortium of the other spouse seems to belong to husband and wife alike, and to rest upon the same reasons in favor of each.” [Feneff v. R. R., supra, l. c. 280.] If the Commonwealth of Massachusetts had any statute such as ours,, giving the wife a property in her personal rights as such and authorizing a suit for any violation of them, it was not noted in that case. Neither is any such statute adverted to in the Indiana case of Brown v. Kistleman, 177 Ind. 692, which simply followed the ruling of the Massachusetts case. These cases, and others of which they are a type, would have been only persuasive authority if they were based upon similar statutes, but in the absence of any showing of statues like ours in the jurisdictions where these rulings were made, they have no pertinency to the injury in hand. On the other hand, in those jurisdictions where there is a statute of tantamount force to the Missouri acts or where they are not trammeled by the common law, the courts have uniformly held that the wife may vindicate such rights in a personal action. [The Schooner Robert Lewers Co. v. Kekauoha, 52 C. C. A. 483; Hodgkinson v. Hodgkinson, 43 Neb. l. c. 271.]
Material Injury. III. The reasons given in the decisions against the right of a wife to recover for the material injury inflicted on her by a negligent act destroying the power of her husband to labor for her support and thereby imposing on her the task of supporting him and which renders him unable to perform the duties of a consort, are utterly inadequate to support the conclusions reached. It will be noted in all of these cases that they are rested upon the lack of suable capacity of the wife or upon the rules of the common law disabling her as against her husband to acquire title to the money awarded as damages for wrongful injury to him, wherefore the hobgoblin of a foolish consistency impelled the common law to adjudge she could not recover for an injury to her personal rights so caused, since the instant a recovery was *640had it would belong to the husband. Neither of these reasons can exist under the specific provisions of the law governing married women; for, as has been shown, the wife may now sue as a femme sole and the awards for any violation of her personal rights belong to her and not to her husband. [Womach, v. St. Joseph, 201 Mo. l. c. 486 et seq'] It follows that under the terms of the Missouri statute, no reason can now exist why she may not recover for the deprivation of the maintainance as well as affection due from her husband as such; both of which have been lost to her by the wrongful and negligent act of the defendant, just as the husband could recover at common law and today, for the deprivation of any of'the elements implied by a negligent injury inflicted on her. [Thompson v. St. Ry Co., 135 Mo. l. c. 221, 222; Elliott v. K. C., 210 Mo. 576; Montgomery v. Montgomery, 142 Mo. App. 486; Hoard v. Peck, 56 Barb. 202; Bailey v. Long, 90 S. E. 809.] In the suit of a husband for the loss of his consortium by the injury to his wife from the negligent overturning of a stage coach causing her death in a month, Lord Ellenborougi-i said: “The plaintiff could recover for the loss of ivife’s society and the distress of mind he had suffered on her account, from the time of the accident to the moment of her dissolution.” [Baker v. Bolton, 1 Camp. 493.] That ruling is the exact converse of the theory of the present action.
Double Compensation. IV. This conclusion is upon the rule universally upheld in text-books and decisions, that the wife has the same right to the consortium as the husband; that under the enabling acts in this State she has the same right to sue for their infraction that he has; that the proceeds of a violation of such “personal rights” are her separate estate and do not belong to him and could not be recovered in any suit by him alone; that all the rules and reasons existing at common law, preventing suck a recovery by the wife for the violation of her personal rights by the negligent injury of her husband, while *641sanctioning a converse right in him to recover, have been obliterated by our statutes abolishing the feudal conception of the legal submersion of the wife into the entity of her husband. The -feudal system was inducted into England by William after he won at Hastings; it was the social and political basis of the stratocracies then in the zenith of their power on the continent of Europe. Its barbarous behests were imposed upon the conquered nation, and were infused into the common law and brought over to this country as a part of their heritage by the colonists. It has taken ages to eliminate them, but the unceasing evolution of the law in response to reason and social opinion, has extirpated many of the crudities, cruelties and absurd corollaries of feudalism from the body of the law, which is ceaslessly adjusting itself to the growth of society and the advance of civilization. And it is not too much to say that judicial progression has been carried forward in exact proportion as these notions have been relegated to the ■ decayed system from which they sprang. So prone are the courts to cling to consuetudinary law, even after the reason for the custom has ceased or become a mere memory, that it has re quired hundreds of years to obtain the meed of justice for married women. Equity, administering the refined justice of the Roman law, has at times loosened the medieval manacles which feudalism imposed on the common law. Right reason, the constant corrector of customary law, has reformed social habits and created enlightened public thought — now crystalized into a clear and positive statute in this State — whose necessary import and only intelligible purpose was to destroy the last vestige of the odious injustice which denied to married women the full property rights of every other human being.
The courts of appeals have entirely •misconceived the nature of the right which a married woman acquires under the statute for a violation of her persona] •rights. By the express terms of the statute this is a *642property right and belongs to her as suck and becomes her sole and separate property. It is, therefore, a right which is “affected” by a negligent injury. Indeed, that it is a property right is affirmed not only by the text-writers, but by the very decisions .• in other jurisdictions which, for common law reasons or the lack of a local statute, deny the right to redress. The contrary notions of the courts of appeals are incorrect in premises and, therefore, unsound in conclusions (Gambino v. Coal & Coke Co., 175 Mo. App. 653; Stout v. Railroad, 172 Mo. App. 113) and should be disapproved.
It follows that the judgment in this case should be reversed and the cause remanded for further proceedings not inconsistent with this opinion. With the above views
Williams, Jconcurs.