115 So. 447 | La. | 1927
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *171 This is a suit for damages for alienation of a wife's affections. It is said to be the first instance where such a cause or right of action has ever been asserted in Louisiana. The suit was dismissed on an exception of no cause or right of action, and the plaintiff has appealed from the decision.
There is no positive law to be found on the subject, in the Civil Code, or in any statute or in the jurisprudence of this state. There is no suggestion or intimation of such a right of action to be found anywhere in the provisions of the Civil Code on the subject of *172 marriage, or of the relative rights and obligations of husband and wife, or the dissolution of the contract of marriage, or the causes or the consequences thereof, or on the subject of damages, arising either ex delicto or ex contractu. Articles 119 and 120 of the Code declare that the husband and wife owe to each other fidelity, support and assistance; that the wife must live with her husband and follow him wherever he chooses to reside; and that he, in turn, must provide for her wants according to his means. It seems strange that the law, in saying what the husband and wife owe to each other, does not mention love and affection; perhaps it is because the law undertakes only to control and regulate human conduct — not human nature. As Ralph Waldo Emerson observed, laws do not make men; men make laws.
There are several very obvious reasons why none of the great lawyers who have graced Louisiana's bar has ever heretofore thought that an action for damages for alienation of a wife's affections would be consonant with the system of law peculiar to Louisiana. In the first place, the damages which are allowed in those jurisdictions where the offense constitutes a cause of action for damages are declared to be — and they are essentially — punitive or exemplary damages. And, as this court has said many times, "Our law does not authorize the infliction of punitive damages in civil cases." Serio v. American Brewing Co.,
The idea of allowing punitive damages, in a civil action for tort, is perhaps a relic of the obsolete remedy called "appeal," which Blackstone, vol. 4, p. 383, says "was an accusation by a private subject against another for some heinous crime, demanding punishment on account of the particular injury suffered, rather than for the offense against the public." "It had its origin," says the author, "in those times when a private pecuniary satisfaction called a weregild was constantly paid to the party injured, or his relations, to expiate enormous offenses."Weregild meant the money value of a human being. The remedy called "appeal," in the early periods of the common law, was discouraged and virtually abolished by a statute of Westminster II, 13 Edward I, c. 12, requiring that, if the appellee should be acquitted, the appellant should suffer a year's imprisonment and pay a fine to the king, besides damages to the appellee, etc. 4 Blackstone, 316. In Louisiana, if a public wrong causes personal or private injury to an individual, the one wrong is not confused with or swallowed up in the other, but the public wrong is dealt with alone in the courts exercising criminal jurisdiction, and the private wrong in the courts exercising civil jurisdiction.
The case of Massy v. The Marquis of Headfort, in County Clare, Ireland, in 1804, for damages for alienation of a wife's affections, is one of the most memorable in Anglo-Saxon annuls. It was made so, not so much by the prominence of the parties, as by the greatness of Curran's speech to the jury, and by the tragic background for it, in that Curran had only recently lost his own wife in the same terrible way. Although he represented the plaintiff in the case, and spoke for damages, and personified his client's cause in his own life, he gave utterance, perhaps *174 unconsciously, but in a way almost gigantic, to the fundamental proposition that compensation in money is not the right remedy for loss of a wife's affections. Turning from the jury to the presiding judge, Curran said:
"Oh, what woe would have been saved if you, my Lord, had met the adulterer when he arrived at the bank of the river with the ill-fated fugitive, and had spoken to him thus: `Pause, my Lord, while there is yet a moment for reflection. What are your motives, what your views, what your prospects, from what you are about to do? You cannot look to the chance of marrying this wretched fugitive. Between you and such an event there are two sepulchers to pass. [The Marquis of Headfort had a wife, and Mrs. Massy, of course, a husband.] What are your inducements? Is it love, think you? No. Do not give that name to any attraction you can find in the faded refuse of a violated bed. Love is a noble and generous passion; it can be founded only on a pure and ardent friendship, on an exalted respect, on an implicit confidence in its object. Could you repose upon her faith? Look in her face, my Lord; she is at this moment giving you the violation of the most sacred of human obligations as the pledge of her fidelity. She is giving you the most irrefragable proof that as she is deserting her husband for you, so would she without scruple abandon you for another.'"
The damages sought by the Reverend Charles Massy from The Marquis of Headfort were not compensatory, but punitive or exemplary, damages. That was acknowledged in the speeches by all of the great array of counsel who appeared, and was repeated in Baron Smith's charge to the jury, when he said:
"The principle is that this sort of action partakes of the nature of a penal prosecution, and that large and exemplary damages are usually awarded."
Another reason why, in Louisiana, a suit of this kind is untenable is that, as to the rights of the parties:
"The law considers marriage in no other view than as a civil contract." Rev. Civ. Code, art.
86 .
And it is well settled, in Louisiana, that there is no right of action for damages ex delicto *175
against one who induces another to violate his or her contract with a third person. See Kline v. Eubanks,
"An action cannot, in general, be maintained for inducing a third person to break his contract with the plaintiff; the consequence, after all, being a broken contract, for which the party to the contract may have his remedy by suing on it. But if the third person was induced to break his contract by deception, it may be different. If, for example, one were to personate a vendee of goods, and receive and pay for them as on a sale to himself, the vendee would have his action against the vendor, but he might also pursue the party who, by deceiving one, had defrauded both."
There is no element of such deception or fraud when a man persuades the wife of another to breach her contract by violating her marriage vow. It is culpable, of course, beyond measure, and ought to be subject to severe penalty; but that has nothing to do with the personal right of action of the party injured by the breach of contract. It is true that marriage is something more than an ordinary contract in which the parties alone are concerned, for it is a status, in which society itself is concerned. But the laws which govern marriage as a status, in the interest of society, are those which protect society generally, such as penal laws, as distinguished from those which protect and regulate the private rights of the parties to the contract. One who induces another to break that contract ought to be subject to prosecution at the instance and for the benefit of society, but the prosecution and punishment cannot be by means of a civil suit, for the benefit only of the other party to the contract.
In each of the two cases last cited, the action was for damages against a person who had persuaded another to breach his contract of employment with the plaintiff, and the *176
damages claimed were the loss of the services to be rendered. The decisions are therefore very apropos. In the latter of the two cases (
"In Kline v. Eubanks,
109 La. 242 , 33 So. 211, we held that the civil action provided by that statute [Act 50 of 1892, p. 71] would not lie until after a criminal conviction. We also considered the case under Civ. Code, art.2315 , which provides that `every act of man that causes damage to another obliges him by whose fault it happened to repair it'; and we held that no action was maintainable under said article where a third person had knowingly employed and enticed away a laborer before the expiration of the term of his contract. * * *"While the Mosaic law, cited by counsel, declares that `thou shalt not covet thy neighbor's servant,' it does not impose a pecuniary penalty for disobedience. It may also be noted that in the time of Moses servants were slaves, and were classed with the ox and the ass."
And so, also, was classed the neighbor's wife, in the Mosaic law:
"Thou shalt not covet thy neighbor's house; thou shalt not covet thy neighbor's wife, nor his manservant, nor his maidservant, nor his ox, nor his ass, nor anything that is thy neighbor's."
At common law, the right of action for damages for alienation of a wife's affections is in some measure based upon the same obsolete idea that the wife is one of the husband's chattels, and that her companionship, her services and her affections are his property, for the loss of which, by wrongful inducement on the part of another man, the husband ought to be compensated with money. 3 Blackstone, p. 143, explains that that is why, at common law, the wife has no such right of action for alienation of the affections of her husband, viz.:
"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; therefore the inferior can suffer no loss or injury."
It is just as true that a man can have no kind of property in the company, care or assistance of one who is, in every sense, his *177
equal in the eyes of the law. It is not the wife's inferiority, but her want of superiority, that denies her the right of action, accorded the husband at common law, to recover damages for alienation of the affections of the other spouse. In Louisiana, the wife, by virtue of several recent emancipation laws, has practically every prerogative that the husband has. It would be absurd, therefore, to give to husbands the right of action for damages for alienation of the wife's affections, on the theory of the common law that she is his inferior, or to give the right of action to husbands and withhold it from their wives. In fact, and in the very nature of things, it would be far better to give the wife a right of action for damages for the loss of the protection and support of her husband than to give him a right of action for damages for the loss of her love and affection. It was on that theory, of the husband's being of more financial value and importance to the wife than she is to him, that the Legislature, in amending article
In 1 Cooley on Torts (3d Ed.) c. 8, entitled "Injuries to Family Rights" — the same chapter that deals with the common-law right of action for damages for alienation of a wife's affections — on page 465, the author says:
"If we direct attention to the remedies which, at common law, the husband might have against *178 third persons for a violation of his rights as husband, we find them all grounded upon or permeated with the ideas which mark their origin in a rough and uncultivated society."
In the same chapter and section, on the next preceding page, 464, the author speaks of that period when the common law on this subject was forming, as:
"When serfdom and villenage very largely prevailed and when wife and children were to husband and father rather servants and dependents than equals, and were expected to look to him for protection against wrongs at the hands of others. * * * Social changes have been going on more rapidly in modern times than the modification of legal principles, and the common law of family rights is, in most particulars, not greatly different now from what it was when it tolerated a man in inflicting personal chastisement on his wife or his marriageable daughter."
Another reason why, in Louisiana, the husband has no right of action for damages for alienation of his wife's affections is that, under the civil law, in the absence of a statute conferring such right, there is no right of action for damages for the loss of the services or support or companionship or affections of a human being. The fundamental reason for that is that the enjoyment of the services or support or companionship or affections of a person is not a property right, except where it is made such by statute. Paraphrasing 3 Blackstone, p. 143, the husband has no kind of property in the companionship, services or affections of the wife "as the superior is held to have in those of the inferior" at common law.
It is argued for the appellant that he has a right of action under the broad statement in article
"Men sometimes offend, dishonour and harass, by various means, married or unmarried women, or widows who lead virtuous lives at home and enjoy good characters, by endeavoring frequently to speak with them, either in the houses where they dwell, or by following them in the streets, churches or other places where they are to he found; or by secretly sending jewels to them and those with whom they live, in order to corrupt them both; at other times by endeavoring to corrupt them, by means of pimps, and in various other ways, so that by great importunity and artifice, there are some women who are finally seduced. And even good women who resist their attempts are, in a manner, injured in their character, inasmuch as they will be *180 suspected of committing some evil with those who pursue them so assiduously, in either of the ways above mentioned. Wherefore we consider that they who conduct themselves in this manner do great wrong and injury to such women, as well as their fathers, husbands, fathers in law, and other relations. We therefore ordain that every man who shall offend in either of the ways herein mentioned shall make amends to the woman who sustainsinjury thereby." (The italics are ours.)
In the Digest of 1808, the article (16, of Book 3, tit. 4) which is now article
"Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it, even though the fault be not of the nature of those which expose to the penalties of simple or correctional police."
When the article was copied into the Code of 1825 as article 2294, it was abbreviated thus:
"Every act whatever of man, that causes damage to another, obliges him, by whose fault it happened, to repair it."
That is an exact translation of article 1382 of the Code Napoleon.
The first case in which damages were claimed, under article 2294 of the Code of 1825 (now article 2315 of the Revised Civil Code), for the loss of the support and companionship and affection of a person, caused by the wrongful act of another, was that of the widow Hubgh v. New Orleans Carrollton Railroad Co., 6 La. Ann. 495, in 1851. The widow, for herself and for her minor children, claimed damages for the loss of the support and companionship and affection of her husband — her children's father — who was killed through the alleged negligence of the defendant. She did not claim that a right of action for the personal injuries which her husband had suffered had survived in her favor or in favor of her children. There was therefore no issue or question of survival or heritability of a right of action for personal injuries. The only question was whether the *181 plaintiff had a right of action for damages against the party whose fault had caused her and her children the loss of the support and companionship and affection of her husband. The court ruled that she had no right of action because, although the case was within the very letter of the law, it was not within its meaning or its spirit. The court observed that article 2294 of the Code of 1825 was not new legislation, even in the Digest of 1808, but was merely a restatement of a fundamental principle which was theretofore embodied in the laws of Rome and Spain, and that it was therefore subject to the same construction and limitations which had been put upon it in the jurisprudence of Rome and Spain. The court said:
"The dispositions of article 2294 are found in the Roman and Spanish laws; so far from being new legislation, that article embodies a general principle as old as the science of jurisprudence itself, and it must still be understood, with the limitations affixed to it by the jurisprudence of Rome and Spain."
In an application for rehearing, in the Hubgh Case, it was argued at length and with great force, on behalf of the plaintiff, that, inasmuch as the French commentators and the Court of Cassation had maintained that, under the French Code, there was a right of action for the loss of the services, support, companionship and affections of a person, by the fault of another, this court should give the same construction to article 2294 of the Code of 1825. But the court, through Chief Justice Eustis, replied that the interpretation which the French commentators and the Court of Cassation had given to article 1382 of the French Code was according to the jurisprudence prevailing in France when the article was adopted; whereas, under the jurisprudence of Rome and Spain, which was controlling in Louisiana when the article was adopted in the Digest of 1808, there was no right of action for the loss, by the wrongful act of another, of the services *182 or support or companionship of a free person. The court therefore refused a rehearing, saying:
"It is understood that the present action is founded upon the direct injury to themselves by the death of Hubgh, from the causes alleged in the petition; and is not attempted to be maintained as a right transmitted to them through the deceased. The right of action is claimed on the ground on which it has been allowed in France; the articles of the Codes of that country and of Louisiana being identical, which provide that every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it. Code Napoleon, 1382; L.C. 2294. * * *
"We found no precedent for any such action, though, unfortunately, occasions for its exercise have been but too frequent within our borders; and with the learning and research which has distinguished our bar for nearly half a century, the singular fact remains unexplained, that up to the present suit no such right of action has been asserted. There can have been but one cause for this; and that is, the universal conviction of the bench and the bar that no such action could be maintained. * * *
"The obligation resulting from a tort can only be the ground of an action, when the obligation is recognized and ratified by the law; for by far the greater portion of the wrongs to which we are exposed in our artificial condition of society the law does not afford any redress. The redress is of necessity confined to legal rights, for which the law has provided an action or inflicts a punishment. 3 Black. Com. 23, 117; Pothier on Obligations, No. 1 and 197.
"We now come to consider whether the plaintiff's right of action is authorized by the articles of our Code. The article 2294 of our Code provides that every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it. The provisions of this article, however general and comprehensive its terms may be, are found more than once recited in terms equally general and comprehensive in the laws of the fifteenth title of the seventh Partida. The article was inserted in the Code of 1809, at a time when the Spanish laws were in force. Itwas put and retained to this time in the Code, not forthe purpose of making any change in the law, butbecause it was a principle which was in its properplace in a Code; a principle which would be equallyrecognized as a necessary conservative element ofsociety, and equally obligatory whether it was formallyenacted in a Code or not. [The italics are ours.] * * * *183
"Conceding it to be true, that the present jurisprudence [in France] is as stated by counsel, and that the decisions of the Court of Cassation, on this article, are correct — a proposition which we have no interest in questioning — does it follow that our decisions ought to be the same on the article in our Code, which is identical? We think not; and for this reason, that the systems to which the articles apply are not similar. * * *
"In the case, therefore, under consideration, the law being different in Louisiana from that of France, as the latter is assumed to be, in argument, and the application of the article being to the law of Louisiana, and not to that of France, the import and sense of the article becomes entirely an open question; and the responsibility of determining its application is thrown upon the court without the aid of any authority, and unrestricted by any interpretation. * * *
"Finding that no such action was ever instituted in this state, our inquiries were necessarily directed to the examination of the former jurisprudence ofLouisiana, in order to ascertain whether the action could be based on any well-recognizedprinciple in the Roman or the Spanish laws. [The italics are ours.]"
In speaking of "the former jurisprudence of Louisiana," under the "well-recognized principles in the Roman and Spanish laws," the learned Chief Justice, of course, did not have reference to any of the statute laws of Rome or Spain, for they were repealed by article 3521 of the Code of 1825, and by section 25 of Act 83 of 1828. The court had already decided, in Reynolds v. Swain,
"We, therefore, conclude that the Spanish, Roman, and French civil laws which the Legislature repealed are the positive, written, or statute laws of those nations, and of this state; and only such as were introductory of a new rule, and not those which were merely declaratory — that the Legislature did not intend to *184 abrogate those principles of law which had been established or settled by the decisions of courts of justice."
It is certain, therefore, that, under "those principles of law which had been established or settled by the decisions of the courts of justice" in Louisiana, before the adoption of the Code of 1825, there was no right of action for damages for the loss of a wife's affections through the wrongful attentions of a third party. We are not aware of any principle in the laws of Rome or Spain prevailing here when the Code was adopted that would have sanctioned such a suit. It would have been utterly inconsistent with the doctrine recognized in the Hubgh Case, that there was no right of action for damages for the loss of the companionship or affections of a husband, or wife, or of any other relation, by the fault of a third party.
Four years after the Hubgh Case was decided, the Legislature amended article 2294 of the Code of 1825, by the Act 223 of 1855, by declaring that a right of action for personal injuries should survive, in case of the death of the person injured, for one year, in favor of his minor children and widow, or either of them, and in default of them in favor of the surviving father and mother, or either of them. The amendment did not give the widow or minor children or father or mother a right of action for damages suffered directly by them, in the loss of the support or companionship of the deceased, but merely gave them the right to assert, within one year, such right of action as the deceased had for the suffering endured by him. In the case of Herman, Widow and Tutrix, v. N.O. C.R.R. Co., 11 La. Ann. 5, where the widow sued for damages for herself and her child for the loss of support of the husband and father, the court declined to decide what effect the amendment by the Act 223 of 1855 had had upon article 2294, because the accident *185 complained of had occurred before the statute went into effect.
As amended, article 2294 was retained as article 2315 in the revision of the Code of 1870. The first case in which the article, as amended, was construed was Earhart v. N.O. C.R.R. Co., 17 La. Ann. 243, in 1865. The suit was for damages for grief suffered by the plaintiff in consequence of the death of his minor child, killed by a railroad train. The ruling was that the article of the Code, as amended, merely subrogated the parent to the right of action which the child had had for the suffering endured by him. As the only damages claimed were those alleged to have been suffered directly by the father, in the loss of the companionship of the child, the court maintained the exception of no cause or right of action, reversed the verdict of the jury, and dismissed the suit. The next case was McCubbin, Tutor, v. Hastings, 27 La. Ann. 713, in 1875. It was held that the plaintiff had not proven that any damages were suffered by him personally, and that his minor child could recover only such damages as the injured mother had suffered, and not the damages suffered directly by the child by the loss of the mother's care, etc. The next case was that of Vredenburg v. Behan, 33 La. Ann. 627, in 1881; and the ruling was that the district judge had erred in charging the jury "that damages can be claimed by the heirs of the deceased for the loss of his life." The court said:
"The act of 1855, amending article2315 of the Civil Code, expressly limits such right [of action] in favor of the widow and minor heirs to the right of action which the deceased would have had, had he survived the injury, and it cannot be extended beyond this."
In Walton v. Booth, 34 La. Ann. 913, the plaintiffs sued for damages for the injury and consequent death of their married daughter. They claimed damages only for the suffering which the deceased had endured, *186 and for which she might have sued if she had survived. The defendant pleaded that, if there was a right of action in any one for the death of the woman, it was vested in her husband; but the court ruled, according to the statute, that the right of action was in the surviving parents of the injured woman, and that the husband had no right of action.
Thereafter, by the Act 71 of 1884, the Legislature amended article 2315 of the Code so as to give to the surviving relations, named in the article, a right of action for the loss of the support and companionship of the deceased, in addition to their right to recover such damages as he might have recovered if he had survived. The amendment consisted of the addition of this paragraph, viz.:
"The survivors above mentioned may also recover the damages sustained by them by the death of the parent or child, or husband or wife, as the case may be."
In Van Amburg v. V., S. P. Ry. Co., 37 La. Ann. 650, 55 Am. Rep. 517, in 1885, the plaintiff claimed damages for the loss of support and companionship and affection of her son, who was killed on the defendant's railroad, and claimed damages also for the suffering which he had endured, and for which he might have claimed damages if he had survived. The court allowed the latter claim, but rejected the former, because the accident had occurred a few days before the Act 71 of 1884 went into effect.
In Chivers v. Roger, 50 La. Ann. 57, 23 So. 100, in 1898, the plaintiff sued for damages for the death of his son, and died after the case had been tried and submitted for decision but before it was decided. His heirs — not the minor child or children or widow or father or mother of the injured person, but the heirs at law of his father — intervened and became parties plaintiff in the case. It was held that the right of action *187 had abated at the death of the father of the injured person, because the right to claim damages for the death of a human being — or for the loss of his companionship, support, services or affection — was not transmissible, either by the terms of the statute or by the law of inheritance.
Huberwald v. Orleans R.R. Co., 50 La. Ann. 477, 23 So. 474; Delisle v. Bourriague,
There are many other instances in our jurisprudence where a wrongful act which caused damage to another did not oblige the wrongdoer to repair it, because the case, although within the letter of the law, was not within its spirit. In Wooten v. Geisser, 9 La. Ann. 523, for example, the plaintiff claimed $10,000 damages, averring that:
The defendant, "contriving, and wrongfully and unjustly intending to injure him, had debauched a young woman who stood in the relation *188 of daughter and servant to him, by means whereof he lost her services, and was put to great expense."
The suit was dismissed for want of a cause or right of action, on the ground, as the court said:
"It is not alleged that either violence or craft was employed by the defendant, and we are left to infer that the woman was as guilty as himself."
In Pattison v. Gulf Bag Co.,
"But there is another question underlying this and all other rules for the interpretation of statutes, and that is, What was the intention of the legislative body? Without going back to the famous case of the drawing of blood in the streets of Bologna, the books are full of authorities to the effect that the intention of the lawmaking power will prevail, even against the letter of the statute; or, as tersely expressed by Mr. Justice Swayne, in Smythe v. Fiske, 23 Wall. 374, 380, 23 L. Ed. 47, 49: `A thing may be within the letter of a statute and not within its meaning, and within its meaning, though not within its letter. The intention of the lawmaker is the law.' A parallel expression *189 is found in the opinion of Mr. Chief Justice Thompson of the Supreme Court of the state of New York (subsequently, Mr. Justice Thompson of this court), in People v. Utica Ins. Co., 15 Johns. 358, 381, 8 Am. Dec. 243: `A thing which is within the intention of the makers of a statute is as much within the statute as if it were within the letter; and a thing which is within the letter of the statute is not within the statute, unless it be within the intention of the makers.'
"Without going farther, numerous illustrations of this maxim are found in the reports of our own court. Nowhere is the doctrine more broadly stated than in United States v. Kirby, 7 Wall. 482, 19 L. Ed. 278, in which an act of Congress, providing that if `any person shall knowingly and willfully obstruct or retard the passage of the mail, or of any driver or carrier,' was held not to apply to a state officer who held a warrant of arrest against a carrier for murder, the court observing that no officer of the United States was placed by his position above responsibility to the legal tribunals of the country, and to the ordinary processes for his arrest and detention when accused of felony. `All laws,' said the court, `should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the Legislature intended exceptions to its language, which would avoid results of this character. The reason of the law in such cases should prevail over its letter.' A case was cited from Plowden, holding that a statute which punished a prisoner as a felon who broke prison did not extend to a prisoner who broke out when the prison was on fire, `for he is not to be hanged because he would not stay to be burned.' Similar language to that in Kirby's Case was used in Carlisle v. United States, 16 Wall. 147, 153, 21 L. Ed. 426, 429.
"In Atkins v. Fiber Disintegrating Co., 18 Wall. 272, 21 L. Ed. 841, it was held that a suit in personam in admiralty was not a `civil suit' within the eleventh section of the judiciary act, though clearly a civil suit in the general sense of that phrase, and as used in other sections of the same act. See, also, Re Louisville Underwriters,
"Two recent English cases are instructive in this connection: In Plumstead Dist. Bd. of Works v. Spackman, L.R. 13 Q.B. Div. 878, 887, it was said by the Master of Rolls, afterwards Lord Esher: `If there are no means of avoiding such an interpretation of the statute' (as will amount to a great hardship), `a judge must come to the conclusion that the Legislature by inadvertence has committed an act of legislative injustice; but, to my mind, a judge ought to struggle with all the intellect that he has, and with all the vigor of mind that he has, against such an interpretation of an act of Parliament; and, unless he is forced to come to a contrary conclusion, he ought to assume that it is impossible that the Legislature could have so intended.' See, also, Ex parte Walton, L.R. 17 Ch. Div. 746."
The case of Hennessey v. Wahlig,
Article
"He who causes another person to do an unlawful act, or assists or encourages in the commission of it, is answerable, in solido, with that person, for the damage caused by such act."
Assuming that the article refers not only to unlawful acts but to any wrongful act, it merely declares that the obligation of joint tort-feasors to make reparation in damages for their wrongful act is a solidary obligation. The law makes one who causes or procures another to do a wrongful act, or who assists or encourages the perpetrator, liable in damages to the same extent that the perpetrator is liable. The defendant in this case cannot be held liable under that article, for having caused or encouraged the plaintiff's wife to commit a wrongful act, because, as *192 she is not answerable in damages for the offense, it is impossible for the defendant to be answerable in solido with her.
It is suggested, as authority for the proposition that article
"The actions for injurious words, whether verbal or written, and that for damages caused by slaves or animals, or resulting from offenses or quasi offenses."
In Carlin v. Stewart the court merely said:
"The appellee's counsel has referred us to the case of Stackpole v. Hennen, 6 Mart. (N.S.) 481 [17 Am. Dec. 187], in which the action of slander seems to be recognized by this court, and an act of the Legislature passed at the following session of the Legislature, bottomed on our decision. He has also cited the 21st and the 2295th articles of the Louisiana Code.
"It is useless in the present case to inquire whether the repeal of the civil laws by a late act of the Legislature extends to any other but statutory laws. The parts of the Code relied on would simply of themselves authorize our courts to sustain actions of slander."
The reference to the 21st article of the Code, in connection with the 2295th article, in the quotation from Carlin v. Stewart, is very *193 significant. The 2295th article of the Code of 1825 (which is article 2316 of the Revised Code) declares that every person is responsible for the damage he occasions not merely by his act but by his negligence, his imprudence, or his want of skill. The 21st article of the Code of 1825 (which has the same number in the Revised Code) declares that, in all civil cases, where there is no express law, the judge must proceed and decide according to equity, and that to decide according to equity means to resort to natural law and reason, and received usages. Now, if we refer to Moreau Carleton's translation of the Partidas, vol. I, p. 51, and volume II, p. 1170 et seq., we find that the action for damages "caused by words, as by defamation," was one of the "received usages" expressly provided for in the third Partida, tit. II, law 31, and seventh Partida, tit. IX, in the category with actions for damages for trespass and for other offenses and quasi offenses.
If we follow the example set by the court in Carlin v. Stewart, and decide this case according to natural law and reason andreceived usages, because of there being no positive law giving a right of action for damages for alienation of a wife's affections, we are bound to decide that there is no such right of action. What better evidence could we find of the natural law and reason and received usages on this subject than the fact that heretofore, in the 200 years of litigation, since Bienville founded the city of New Orleans and province of Louisiana, no one has ever attempted to assert such right of action?
The case before us, as disclosed by the averments of the petition, is not edifying. We doubt that it could withstand a demurrer in one of the common-law states where a right of action for damages for alienation of a wife's affections is granted, unless, perhaps, *194 where the minority rule prevails, that it matters not which one of the offending parties is the seducer. The facts disclosed, stated broadly, are that the plaintiff and the offending spouse were married in Arkansas nearly 16 months ago — less than five months before this suit was brought — and they soon after moved to New Orleans, where the plaintiff introduced his wife to his erstwhile friend, Monteleone. About three months later, plaintiff went away on a business trip, leaving his wife with a lady cousin of his. He corresponded with her daily, by letters and telegrams and telephone messages for 12 or 13 days, when she ceased replying, and his letters were returned unopened, bearing the postmark, "Removed." Meanwhile, Monteleone, it is alleged, had paid frequent visits and marked attention to Mrs. Moulin, entertaining her at suppers and drinking parties, at midnight clubs, cabarets, and gambling houses; at one of which midnight parties in a cabaret called "The Silver Slipper," it is alleged, "Mrs. Moulin became so hilarious that she disturbed even that boisterous place to such an extent that Monteleone took her away and returned with her about an hour and a half later." It is alleged that he induced her to ride to Baton Rouge with him in his automobile, and introduced her there as Mrs. Brown. Finally, it is alleged, he persuaded her to leave the house where her husband had left her and to go and live with him (Monteleone) in an apartment, where he supported and provided for her as his wife; so that, when plaintiff returned from his trip, and met his wife, she informed him that Monteleone "was in love with her," that she was intimate with him, and that she would no longer live with her husband. For all of which the plaintiff claims the sum of $80,000, itemized into four items of equal worth, viz.: $20,000 for the deprivation of the wife's *195 love and affection, and the loss of her fidelity and assistance; $20,000 for the loss of the companionship and society of the wife; $20,000 for the humiliation and mental anguish which the husband endured; and $20,000 for the breaking up of his home.
The best way to suppress such conduct as is described in the plaintiff's petition would be by means of a penal statute condemning both of the particeps criminis. A law that would allow the husband compensation in money for such a wrong would be revolting to a majority of men, and might tend more to encourage blackmail than to protect the home. It is not astonishing that the Civil Code makes no provision for such a right of action.
The judgment is affirmed.
LAND and BRUNOT, JJ., dissent.
