(concurring).
I concur, but in addition to the reasons stated in Justice WADE’S opinion, desire to add the following:
The right of a husband to bring an action for alienation of affections of his wife is a fundamental common-law right, which is uniformly recognized by authorities and *30text writers,1 except that in some states it has been abolished by statute.2 Our legislature has not seen fit to make any enactment in that regard.
To give the statute referred to the effect contended for by defendant would bring about anomalous results inconsistent with the purpose which gave rise to the right of action for alienation of affections. For instance, if the illicit suitor, wooing a married woman, did not fully succeed in destroying the marriage to the extent a divorce was procured, a cause of action for alienation of affections would exist against ■him, whereas, if he succeeded in completely destroying the marriage, then the cause of action would be obliterated by the application of this statute. This would have the effect of rewarding the greater wrongdoer for success in his nefarious efforts, and penalize one not quite so successful.
Another consideration is that if the illicit suitor should suffer remorse of conscience in the course of his wooing, he •could see a danger in repenting and desisting because he would ¡be vulnerable to suit for alienation of affections, whereas if he continued and succeeded in destroying the marriage by getting a divorce granted he would be protected from such suit. This would tend to discourage one from rectifying his conduct and encourage him to continue with his improper designs.
Furthermore, such an application of the statute would pose a dilemma to the aggrieved husband. If the suitor did not succeed in stealing the wife’s affections to the point of the divorce, then the latter could defend on the ground that the husband had not in fact lost his wife’s affections because he still had his wife. It would be very unusual, if not inconceivable, that a husband would sue for alienation of affections while still married to his wife. On the other hand, if the divorce was in fact granted, the suitor could defend on the ground that the right “acquired by marriage,” to sue f-or alienation of affections had been nullified by reason of the statute.
For the foregoing reasons it is clear that it would be incongruous and inconsistent with the purpose for which the right was first recognized, and continues to exist, to accept the interpretation appellant contends for of the statute in question. It seems to me unquestionable that it is to be considered in context with the other statutes in the *31title on Husband and Wife and that it relates solely to their rights inter se.
. See, e. g., Wilder v. Reno, D.C., 39 F.Supp. 404, citing Blackstone but recognizing validity of Pennsylvania statute abolishing cause of action; and Gernerd v. Gernerd, 185 Pa. 233, 39 A. 844, 40 L.R.A. 549, stating that right had not been doubted since the 1745 case of Winsmore v. Greenbank, Willes, 577 (C.P.Eng.). The authorities are also in accord on. this point: 27 Am.Jur. 120, Husband and Wife, Sec. 519; 42 O.J.S., Husband and Wife, § 660, p. 315; Rodgers, Domestic Relations, Sec. 176; Peck, Domestic Relations, 3d Ed., Sec. 45.
. See 42 C.J.S., Husband and Wife, § 660, p. 315, note 42 and supplement.