108 Ky. 610 | Ky. Ct. App. | 1900
Opinion of the court by
Reversing.
The question presented here is, can a married woman maintain an action against one who entices her husband from her, and alienates his affections? At common law marriage is considered in no other light than a civil contract, and the holiness of the matrimonial state is left entirely to the ecclesiastical law. The temporal courts consider unlawful marriage as a civil inconvenience. To punish or to annul unscriptural marriages is the province of the spiritual courts, which 'ct pro salute animae. 1 Bl. Comm., 432. The common láw recognizes the right of either husband or wife to maintain a suit for the restitution of conjugal rights when either is guilty of injury of subtraction without sufficient reason, in which' case the ecclesiastical courts compel them to come together. 3 Bl. Comm., 94. At common law the husband and wife are treated as one person. Marriage operates as a suspension; in most respects, of the legal existence of the latter. All the" disabilities of married women spring from the supposed unity of husband and wife. At common law the right of the wife to the consortium, of her husband exists. In the ecclesiastical jurisdiction, which is exer
It is not questioned that the law gives the husband the right to maintain an action against one who deprives him of the consortium of his wife. The law gives the wife the right to her husband’s support, society, and affection. If the right is invaded, a flagrant wrong has been committed. It is the boast of the common law that there is no right without a remedy. It would be a reproach to the law if there was no remedy for a wrong like this. There is a maxim that “reason is the life of the law.” Certainly it would be against reason to give the husband the right of action for an injury, but deny the same to the wife for suffering a like one. The reason which gives the husband an action against one who depriv.es him of the society and affection of his wife supports a rule which would give the wife the same remedy. Some courts hold
The right to the society of h}s wife is no greater to the husband than her right to his society. Marriage gives to each the same right in that regard. Each is entitled to the society and the affection of the other. They both spring from marriage contract, and are mutual in character. It has been said by some courts that these reciprocal rights are regarded as property of the respective par-' ties. It is not necessary to enter into a discussion of the question as to whether this action could be 'maintained under the common law. If she could not maintain such an action "at common law, it was because there was no remedy available to her for a vindication of .the right. If the statutes supply the remedy, she is clothed with a right to enforce a meritorious cause of action. In Big. Torts, 153, it is said. “To entice away, or to corrupt thé mind and affection of, one’s consort, is a civil wrong, for which the offender is liable to the injured husband or wife.” The gist of the action is not in the loss of assistance, but the loss of consortium of the wife or husband, under which terms are usually included the persons, affection, society,'and aid. Cooley, Torts, 228’, says: “We see no reason why such an action should not be supported- where by statute the wife is allowed for her own benefit, to sue for personal wrongs suffered by her.” In Jaynes v. Jaynes, 39 Hun, 40, it is said: “These reciprocal rights may be regarded as the property of the respective parties, in the broad sense of the word ‘property,’ which includes things not tangible or visible, and applies to whatever is exclusively one’s own.” In Foot v. Card, 58 Conn., 1, 18 Atl., 1027, 6 L. R. A., 829, it was held that the right of the husband to the affections and society of the wife has ever
If the wife was deprived of a redress at common law when her -husband was taken away from her by the improper influence of others, it is because of -its barbarity, which made the wife the mere'servant of the husband, and deprived her of all right to redress her personal wrongs, except by his will. The doctrine of feudal times gave many and comprehensive rights to the baron, but few to the feme. Since such barbarous times generations have succeeded generations, and each one has increased in enlightened thought, before which the harsh doctrines and unreasonable rules of the common law have fallen. In many cases when the courts could not refuse to apply them, some of the Legislatures of the several States in this Union have, by wise enactments, destroyed them. Relics of barbarism in the forms of law can not stand before the progress of enlightened ages.
Kentucky lias kept pace with the age, and has given to
Petition for rehearing filed by appellant and overruled.