(concurring in the result):
In 1935 the legislature of Alabama abolished the causes of action for alienation of affection, criminal conversation, seduction of any female person of the age of 21 years or over, and breach of contract to marry. Acts of Alabama, 1935, p. 780. The history of the action for alienation of affections is most interesting. In Woodson v. Bailey, 210 Ala. 568, 98 So. 809 (1924), this court stated that the injury sought to be redressed in a suit for alienation of affections was loss of consortium. At common law an action for alienation of affections was limited to the husband alone. Young v. Young, 236 Ala. 627, 184 So. 187 (1938).
In discussing the effects of the Married Women’s Acts (Title 34, Sections 65-80, Code of Alabama of 1940 (Recompiled 1958)) on various personal rights of women, and the action of alienation of affections, Justice Thomas, in Parker v. Newman, 200 Ala. 103, 75 So. 479 (1917), stated as follows:
“Of her statutory rights, section 4493 of the Code [1907] [Title 34, Section 72, Code of Alabama of 1940 (Recompiled 1958)] provides that the wife may sue alone at law or in equity, upon all contracts made by her or with her, or for the recovery of her separate property, or for injuries to such property, or for its rents, income, or profits, ‘or for all injuries to her person or reputation.’
“And section 4489 of the Code [1907] [Title 34, Section 68, Code of Alabama of 1940 (Recompiled 1958) ] provides that all damages which the wife may be entitled to recover for injuries to her person or reputation is her separate property. It is thus apparent that the legislative intent was to give to the wife the right of action in such matters that had been accorded to the husband. People’s Home Tel. Co. v. Cockrum, 182 Ala. 547, 62 So. 86; Town of Elba v. Bullard, 152 Ala. 237, 44 So. 412; Engle v. Simmons, 148 Ala. 92, 41 So. 1023, 7 L.R.A.(N.S.) 96, 121 Am.St.Rep. 59, 12 Ann.Cas. 740; Code, §§ 4486-4504. These statutes are declared to be remedial, and should be construed to effect the purpose of the Legislature. Knight v. Coleman, 117 Ala. 266, 22 So. 974; Hays v. Bowdoin et al., 159 Ala. 600, 49 So. 122.
“In Engle v. Simmons, supra, it was held that where the defendant entered the dwelling and by threats, or rude or boisterous conduct, put the wife in fear, *449she may recover for the personal injury sustained. The court said:
1 “Nor does it matter, in our judgment, that the trespass was committed on property belonging to the husband. It was her home as well as that of her husband, and any unlawful entry or invasion thereof which produced physical injury to her was a wrong for which she ought to recover.” Nor is it important that no physical violence was done her person. * * * The plaintiff here was in her home, and had a right to the peaceful and undisturbed enjoyment of the same, and any unlawful entry or invasion thereof, which produced physical injury to her, whether by direct personal violence, or through nervous excitement the proximate result of the wrongful acts of the defendant, was a wrong for which she is entitled to recover.’
* * * * * *
“These cases illustrate the construction given the statute of the wife’s right of suit for injuries ‘to her person.’ ” (Emphasis supplied)
In Parker v. Newman, supra, the court went on to hold that a married woman had a right to sue for alienation of affections (a form of loss of consortium) despite the fact that such right of action did not exist at common law, because modern philosophy and the Married Women’s Acts dictated that right.
In considering the woman’s unequal position at common law, Prosser on Torts (4th Ed. 1971) states at page 881:
“The altered position of woman in the modern world has swept all this into history, and in virtually all states the wife is now given the same rights and remedies as the husband, either by specific statutes, or by a more liberal interpretation of the Married Women’s Acts in recognition of social changes. . . .”
In Woodson v. Bailey, supra, Justice Bouldin, in referring to loss of consortium as being the injury which a suit for alienation of affections seeks to redress, stated the following:
“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 (sic) 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. . . .” (Emphasis supplied)
Justice Knight, in Young v. Young, 236 Ala. 627, 184 So. 187 (1938), in interpreting the statute abolishing the cause of action for alienation of affections, etc., recited the history of such actions in these words:
“Actions for alienation of affections and for criminal conversation are both based upon the marriage relation — actions for the loss of consortium between the spouses from the wrongful acts of others. Alienation of affections is the robbing of husband or wife of the conjugal affection, society, fellowship and comfort which inheres in the normal marriage relation. Criminal conversation is the defilement of the marriage bed, sexual intercourse of an outsider with husband or wife, a breaking down of the covenant relation to ‘keep thee only *450unto him or her so long as you both shall live.’
“By the ancient common law both these actions were limited to the husband alone.
“The emancipation of married women by modern legislation, conferring upon them equality in personal and property rights, led to equality of right in the protection of the marriage relation. So that, in modern England and in most American States a cause of action for alienation of affections or criminal conversation is recognized in favor of husband or wife on a basis of equality. 30 C.J. 1118, § 972; p. 1119, § 973; p. 1153, § 1032; p. 1154, § 1054; 13 R.C.L. p. 1458, § 507; p. 1459, § 508; p. 1485, § 535; p. 1487, § 537.
“This was the law of Alabama at the time of the passage of this act, notwithstanding a statute expressly conferred on the husband a cause of action for criminal conversation, making no mention of the wife. Code, § 5672; Parker v. Newman, 200 Ala. 103, 75 So. 479; Stephenson v. Stephenson, 213 Ala. 545, 105 So. 867.” (Emphasis supplied)
There seems to be no doubt that an action for alienation of affections did not exist for wives at common law, but that the Married Women’s Acts, along with a changed philosophy, established such a right in the wife. The legislature abolished this right in 1935; however, it should be noted that the Act (Title 7, § 115, Code of Alabama, 1940 (Recompiled 1958)) which abolished the civil cause of action for alienation of affections did not abolish any other remedies for the loss of consortium but was limited to specifically named causes of action. Further, it should be observed that the cause of action was abolished for husbands as well as for wives. In fact, in Young v. Young, supra, the following appears pertaining to the construction of such Act:
“Appellant’s construction of this statute would strike down such actions in favor of the husband, unless the wife was under 21 years of age, but leave all actions for alienation of the husband’s affections, or for criminal conversation with him, unaffected. In other words, it would create the same inequality in favor of the wife which the ancient common law gave to the husband.
“Neither the wording, nor the reasons for the passage of this act, warrants any such construction.” (Emphasis supplied)
The concept of equality of the wife remained untarnished by this legislative act.
Up until July 14, 1960, when Smith v. United Construction Workers, Dist. 50, 271 Ala. 42, 122 So.2d 153, was rendered, a logical reading of the alienation of affections cases would have indicated that all actions for injury to loss of consortium with the exception of those specifically abolished by Title 7, Section 115, were applicable to the wife as well as to the husband.
The rationale of these cases considered the action of alienation of affections as a part of the general approach to the matter of loss of consortium and gave every indication that every remedy for loss of consortium was available to the wife as well as to the husband. Parker v. Newman, supra, recited cases construing Title 34, Section 72, Code of Alabama, 1940 (Recompiled 1958), to illustrate that the legislative intent was to give the wife a right of action in all matters in which the action had been formerly accorded only to the husband. In fact, the following portion of Foot v. Card, 58 Conn. 1, 18 A. 1027, 6 L.R.A. 829, 18 Am.St.Rep. 258 (1889), was quoted with approval in Parker v. Newman, supra:
“. . . Inasmuch as by universal consent it is of the essence of every marriage contract that the parties thereto shall, in regard to this particular matter of conjugal society and affection, stand upon an equality, we are unable to find any support for the denial in this reason; and, the right, the injury, and the consequent damage being admitted, then *451comes 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 that the wife is in this regard without the pale of the law because of her inferiority. . . .” (Emphasis supplied)
Following the passage of the Married Women’s Acts the concept of the equality of the wife in the marital relationship permeated all opinions of this court dealing with the redress of loss of consortium by actions for alienation of affections up until the abolition of that cause of action by the legislature. Some states interpreted the Married Women’s Acts to give the wife a cause of action for loss of consortium only when the loss was caused by intentional conduct, but no such interpretation appears in the Alabama decisions.
This court in Smith v. United Construction Workers, Dist. 50, 271 Ala. 42, 122 So.2d 153 (1960), held that the wife did not have the right to maintain a suit for the loss of consortium. In reviewing that case it should be observed that the rationale which established the right of action in the wife for alienation of affections is no more than superficially treated. Parker v. Newman, supra, Woodson v. Bailey, supra, and Young v. Young, supra, are not distinguished at all. In fact, no reason is given whatsoever as to why the statutes removing the disability of married women did not give the wife a right of action for loss of consortium. Instead, Smith relied upon quoted portions of a Florida case, Ripley v. Ewell, 61 So.2d 420 (Fla.1952), and the fact that there was a paucity of jurisdictions which had judicially granted the wife such a cause of action.
I do not base my concurrence in the result of Justice Harwood’s opinion in this case upon a belief that Parker v. Newman, supra, Woodson v. Bailey, supra, and Young v. Young, supra, form the basis for overruling Smith-, but the rationale of those cases is logical and most helpful in determining the applicability of certain language appearing in the Alabama Constitution of 1901 to this problem.
Article 1, Section 1, of the Constitution of 1901, provides:
“That all men are equally free and independent-, that they are endowed by their Creater with certain inalienable rights; that among these are life, liberty and the pursuit of happiness.” (Emphasis supplied)
This court held long ago that such words apply to women the same as to men. O’Neal v. Robinson, 45 Ala. 526 (1871). Logical construction of the language means that all men and women are equally independent as well as free.
A parallel section of an earlier constitution of this state was interpreted by this court “to guarantee to each citizen, all the rights or privileges which any other citizen can enjoy or possess.” In re Dorsey, 7 Port. 293, 361 (Ala.1838).
Article 1, Section 10, provides that no person shall be barred from prosecuting or defending before any tribunal of this state by himself or counsel any civil cause to which he is a party. Other applicable constitutional language is found in Article 1, Section 13, of the Alabama Constitution:
“That all courts shall be open; and that every person, for any injury done him, in his lands, goods, person, or reputation, shall have a remedy by due process of law; and right and justice shall be administered without sale, denial, or delay.” (Emphasis supplied)
The similarity between the language of Article 1, Section 13, of the Alabama Constitution and the italicized language of Foot v. Card, supra, which was quoted with approval in Parker v. Newman, supra, and which was hereinbefore quoted, is interesting.
Because of these provisions of our state constitution, I feel that the result reached *452by Justice Harwood’s opinion in this case, allowing the wife as well as the husband to recover for the loss of the spouse’s consortium caused by wrongful acts of another, is correct. T would add that this result is not only correct, but is compelled by our state’s constitution; consequently, I agree that the case, Smith v. United Construction Workers, Dist. 50 supra, must be overruled.
I further point out that I have not relied upon Title 1, Section 3, Code of Alabama, 1940 (Recompiled 1958). In my opinion my position is controlled by the Constitution of Alabama rather than by an ambiguous and questionable legislative directive to the judiciary.