181 Mass. 430 | Mass. | 1902
This was an action by a wife against another woman alleging adultery with the plaintiff’s husband and consequent loss of his society. See Neville v. Gile, 174 Mass. 305; Houghton v. Rice, 174 Mass. 366. The defendant died, the Superior Court dismissed the action on motion, and the plaintiff appealed. The only question-is whether the action survives by force of Pub. Sts. c. 165, § 1, (R. L. c. 171, § 1,) as an action “ of tort for assault, battery, imprisonment or other damage to the person.”
It would seem that nothing could make it plainer than the words themselves do that this case is not within them. The words “ or other damage to the person ” seem to have been adopted in the General Statutes, Gen. Sts. c. 127, § 1, as an equivalent for St. 1842, c. 89, § 1, which enacted that “ the action of trespass on the case, for damage to the person, shall hereafter survive.” This was by way of addition to the Rev. Sts. c. 93,
It is true that it has been said elsewhere that an action by a husband for debauching his wife was an action for a trespass to his person within an exception to the statutory survival of personal actions. Clarke v. McClelland, 9 Penn. St. 128. Garrison v. Burden, 40 Ala. 513. See Noice v. Brown, 10 Vroom, 569. But this proposition is simply a corollary of the common law doctrine that the wife is the husband’s servant, 1 Roll. Abr. 2, pl. 7, and his chattel, Y. B. 19 Hen. VI. 31, pl. 59, 2 Roll. Abr. 546 (D), as well as a part of his person. 1 Bl. Com. 442. The wrong was a trespass because the wife had no power to consent. 3 Bl. Com. 139. See MacFadzen v. Olivant, 6 East, 387. It hardly needs to be observed that if these principles were invoked they would give the wife no comfort. The dismissal of the action was right under the settled construction of our statute.
Judgment affirmed.