70 W. Va. 317 | W. Va. | 1912
Francis Dent Gross brought an action of trespass on the case in the circuit court of Kandolph county against her father-in-law, Cecil Gross, charging him with having alienated the affection of her husband, Ivan Victor Gross, and inducing him to separate from her, and she recovered a verdict and judgment for twelve thousand, five hundred dollars, and Cecil Gross comes to this Court for relief.
It is contended that no bill of exceptions brings the evidence before us so that we can review the case. The order of the judge says that the defendant presented fifteen bills of exception and also a transcript of all the evidence, and for their identification numbers the bills and states that the transcript is marked "Certificate of Evidence,” and orders that bills and said
Does the declaration show good cause of action? As one ground of demurrer it is said that the declaration showing the plaintiff to be a married woman, she can not sue in her own name. Here we meet with a question somewhat difficult, more so than at first it appeared to me. The authorities differ somewhat. By the common law the suit for a tort to the wife could not be sued by her alone by preponderance of authority. This was on account of unity of husband and wife placing her under disability; but we have a statute saying that “A married woman may .sue or be sued in any court of law or chancery.” Is such a demand as this arising from tort, a mere claim for unliquid-ated damages, a property right, so as to be considered a separate estate of the wife? If so there is no difficulty in saying that she may sue to enforce it under that statute giving her full capacity to sue. I think, with some hesitation, that it is a property right as held in Jaynes v. Jaynes, 39 Hun. 40.
It has been held otherwise. 28 Am. B. 532. It is true that it does not seem comprehended by secs. 1, 2 & 3 of ch. 66 of Code 1906. It is not property acquired ‘Ty inheritance or by gift, grant, devise or bequest.” It is a right to demand money. It must be in favor of some one. This tort was to the wife’s injury. She is the meritorious cause of action. By the common law action for tort injurious to the wife must be by husband and wife. The right was in the wife, but owing to disability she could not sue alone. First Minor’s Inst. 387. It is suggested that section 13 of chapter 66 specifies three cases where the married woman may be sued alone, one being where the action concerns her separate property, and it is said that this section 13 limits the right of action under 15, and must be read
The old rules of the common law laid down centuries gone, making the wife the inferior, practically a slave, have become Avholly distasteful to enlightened public sentiment, and from statute and refusal of many courts to follow them, have “gone glimmering through the dream of things that were, the school boy’s tale, the wonder of an hour.” The rule saying that for a tort against the wife she could not sue during wedlock, but could do so after its close, arose from the old rule stated by Blackstone thus: “The inferior hath no kind of property in the company, care or assistance of the superior, as the superior is held to have in those of the inferior, and therefore the inferior can suffer no loss or injury.” 3 Bl. 142. The old rule made the two persons a unit, and sunk the individuality of the woman in the individuality of the man. Her property rights were sunk largely. Therefore, she could not alone sue to enforce her right. But in our day, when we look at not'merely the letter, but the purpose, of acts giving the wife separate estate, and right to sue, and modern decisions, we conclude that old rules have perished, that a wife is not the legal inferior, hut the equal of the husband. Reflect that in sustaining the wife’s capacity to sue we only say that her incapacity to sue for a tort affecting her was only a disability to sue during wedlock, and that is removed by a broad statute giving her absolute right to sue. We do not go far. We do not legislate. The Legislature has plainly legislated this result, by fair construction of the letter and spirit of its acts. There are older cases denying the right of married women to sue for alienation of the affection of her husband. Duffies v. Duffies, 20 Am. St. R. 29, and Doe, 17 Am. St. R. 499. But in later days since the separate estate acts protecting the property of the wife many,
Some cases hold that without an enabling statute the wife may sue alone. Foot v. Card, 18 Am. St. E. 258; Williams v. Williams, 20 Colo. 51. There is reason why we should not expect the husband to unite in a suit against his father. And generally why should not a wife sue alone for such a wrong? Should the old unjust rule of the common law still prevail, allowing a husband to sue and pocket the proceeds? It is undoubted that a husband may sue for the seduction of his wife, and there is no reason why the wife should not have equal right to sue for seduction of her husband. The ground of action is the loss of consortion.
A second ground presented to sustain the demurrer is, that the declaration should state that Cecil Gross -is father of Ivan
Reed v. Reed, 51 Am. St. R. 210; Brown v. Brown, 70 Am. St. R. 574.. In an early leading case on this subject, Hutchinson v. Peck, 5 Johns. 196, the great Chancellor Kent said: “If the defendant did not stand in the relation of father to the plaintiff’s wife, I should not, perhaps, be inclined to interfere with the verdict. But the relationship gives rise to a new and peculiar interest. ****** A fathers house is always open to his children, and whether they be married or unmarried, it is still to them a refuge from want, and a consolation in distress. Natural affection establishes and consecrates this asylum, and, according to Lord Coke, it is nature’s provision to assist,
There are a great many bills of exceptions and assignments of error. We have considerately gone over them. We have'not found reversible error in evidence admitted or rejected. It is useless to detail it. Nor have we found error in instructions. As we have sought in this opinion to state the law applicable in such a case, we shall not incorporate the mass of instructions, as they do but reflect the law above stated. We think the court fairly and clearly presented the law suited to the case, leaving it to the jury to pass on the evidence. The court refused a permptorv instruction to the jury to find for the defendant, and overruled a motion for a new trial, and overruled a motion to render judgment for defendant non obstante verclicto.
Thus, we are called upon to say whether the verdict is warranted by the evidence. Here we state that this depends on a large Volume of oral evidence, consisting of the conduct and action of the parties, letters, conversation, a great array of circumstances, and conflicting oral evidence. A verdict in such circumstance is well nigh conclusive. A verdict on ■ evidence, not violating law, approved by a judge, is virtually above the touch of an appellate tribunal. On this principle, spoken by so many precedents, this court acts in the present case. The jury found the action of the father malicious and without good motive. We are asked also to set aside the verdict for excessive damages. Here again we are confronted with that verdict.
He knew of the son’s condition. Two physicians, the hospital physician and one in Pennsylvania, as well as other persons, had told the father that continuance of married relations would either retard the son’s recovery or permanently ruin body and mind. I doubt whether the jury gave Gross the right of a father. I doubt whether the proof does overcome the presumption of law that a parent acts under such conditions honestly, with good faith, moved by parental love. I doubt whether the evidence comes up to the standard fixed by law, “the measure of proof, must be exceedingly high.” Beisel v. Gulach, 22 Pa. St.
We are led to affirm the judgment.
Affirmed,