Lead Opinion
This аction is for the alienation of the affections of appellee’s husband.
Against the right of the wife to sue for damages for alienation of the husband’s affections, appellant’s counsel cites Farmer v. Farmer,
Of her statutory rights, section 4493 of tho Code provides that the wife may sue alone at law or in' equity, upon all contracts made by her or with her, or fоr 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 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 thе right of action in such matters that had been accorded to the husband. People’s Home Tel. Co. v. Cockrum,
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, she may recover for the pеrsonal injury sustained. The court said:
“ ‘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 peaсeful 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.”
Discussing the Engle Case (Spearman v. McCrary,
“This was a case of a trespass upon the plaintiff’s home. The plaintiff there had a right of action because of the trespass, and the question was as to her right to recover damages for physical injury resulting from fright causea by the circumstances of the trespass. * * * The result of our examination of the authorities on the question under consideration and of the reasons advanced to support tho conflicting views of different courts is that wo reach the conclusion that the complaint was not subject to demurrer because of its failure to show that the plaintiff sustained any physical injury otherwise than the result of fright or mental shock.” Birmingham Realty Co. v. Thomason,8 Ala. App. 535 ,63 South. 65 .
These cases illustrate the construction given the statute of the wife’s right of suit for injuries “to her person.”
It is said to be an open question in England whether a wife has a right of action for the deprivation of her husband’s society. Clark & Lindell’s Torts (6th Ed.) p. 245. However, in Lynch v. Knight, 9 House of Lords Cas. 577, 589 (1861), a majority of the law lords express an opinion in favor of the existence of such a right of action. In the United States, the prevailng view is that the wife may recover for the alienation of the husband’s affection, or for criminal conversation with him.
In the leading case (1889) of Foot v. Card,
“Inasmuch as by universal consent it is of tho essence of every marriage contract that the parties thereto shall, in regard to this particular matter of conjugal society and affection, stand upon an еquality, 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 comes 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 evéry' wrong. This rule, lying at the foundation of all law, is more potent than, and takes precedence of, the reаson that the wife is in this regard without the pale of the law because of her inferiority.”
In Wolf v. Frank,
Most of the American courts have asserted this equality of husband and wife in the right to conjugal affection, society, and aid; and where the right of action is not sustained in her on the theory of the policy of the law to afford a remedy wherever an injury has been suffered, the right is based upon the statutes of removal of disabilities of the married woman. 1 Standard Ene. of Pr. 771 (3), note 7, where the authorities are collected from all the states.
In Keen v. Keen,
*108 Tn 1 Jaggárd on Torts, p. 468, the author •collects the authorities to> support the view that in natural justicé no reason exists why the wife may not maintain an action against the seducer of her husband, and that her -right of action against such seducer is “coextensive with his right of action against her • seducer,” and that “the weight of authorities and the tendency of legislation strongly incline to 'the latter opinion.”
In a note to the second edition of Cooley’s Torts, § 228, the author sees “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; and it is held that she may maintain an action in her own name for alienating the husband’s affections and causing a separation. Breiman v. Paasch, 7 Abb. N. C. (N. Y.) 249; Warner v. Miller, 17 Abb. N. C. (N. Y.) 221; Jaynes v. Jaynes,
“To entice away, or to corrupt the mind and affections of one’s consort is a civil wrong1 for which the offender is liable to the- injured husband or wife.”
See, also, on this question, 21 Cyc. 1618; 3 Mod. Am. Law, 315; Humphrey v. Pope,
Although the conversation sought to be inquired about was remote and before plaintiff’s husband knew the defendant, yet it was competent, as it might tend to minimize the damages. For the exclusion оf this testimony the judgment must be reversed and the cause remanded. We cannot say that the error of its exclusion was cured by permitting defendant to show by other witnesses and Burgess the fact inquired about; that is, the fact of jealously, on the part of the wife, of the woman inquired about.
There are many assignments of error on questions of impeachment of the defendant.
The defendant was properly permitted to introduce evidence of her general character, as an evidential fact; and by becoming a witness in her own behalf 'she put her general character for truth and veracity in issue.
The authorities we have collected abundantly support the court’s statement of the law of the case. The ease was properly submitted to the jury under the evidence. The affirmative charge requested by the defendant was properly refused under the evidence, and no error intervened in the court’s oral charge.
Reversed and remanded.
Addendum
On Rehearing.
The record of the controverted question is as follows: The defendant asked the plaintiff this question:
“In July, 1911, did you get him to move you from your home, your husband’s home, near B our Mile, to Anniston, and, while coming here, say this, or this in substance, to him: That Mr. Newman had just taken up with Mrs. Adkins, of Jacksonvillе, and that he had broken your heart over it, and you couldn’t never love him again, and that he was continually cursing you, and had cursed you that day, and told you to get out of the house, so he could move the other woman in?”
The plaintiff objected to this question, on the ground that the,matter was too remote to be inquired into. The court sustained the objection, and to this ruling the defendant duly excepted. Thereupon the defendant сalled Robert Burgess and asked him the same question, to which the plaintiff objected. The court sustained the objection, and to tliis. ruling an exception was duly reserved.
“I live two miles south of Jacksonville. I have known Mrs. Newman four years. I moved Mrs. Newman to Anniston in 1911 from where she lives now; on the road coming from there here she stated, in substance, .that Mr. Newmаn had taken up with Mrs. Adkins and had broken her heart, and she never could love him any more, and that he had cursed her and told her to get out of the house, so he could bring the other woman in, and she was going back to her 'father, at Eayette, Ala.”
Xet Burgess failed to testify that she said her husband “was continually cursing her” and “had cursed you [her] that day,” as was also hypothesized in defendant’s question to which objection was erroneously sustained.
“I didn’t say to Robert Burgess, on the occasion that he moved me to Anniston or any-other occasion, that my husband had got mixed up with some woman, a Dyal woman, or some other woman, that I could not love him any more, and he had broken my heart. I didn’t leave him on that occasion, on account of any woman. I stаyed away from him about six days. He came after me. I did not send for him; I never accused him of being intimate with the Dyal woman.”
The record has been again carefully examined, and we are clearly persuaded that reversible error was committed by the trial court, as we have before indicated.