Snedaker v. King

145 N.E. 15 | Ohio | 1924

Lead Opinion

The decree in this case is an extreme instance of government by injunction. It attempts to govern, control, and direct personal relations and domestic affairs. Among other restrictions placed upon the defendant by this decree is that of remaining away from any place where plaintiff's husband may be, and from interfering with plaintiff's efforts to communicate with her husband, and with her efforts to regain his love, esteem, support, and conjugal relation. It would be only a little more extreme if the husband had been made a party defendant, and a mandatory injunction decreed requiring him to discharge all the duties of companionship, affection, love, and all other obligations, legal and moral, assumed by him when he entered the conjugal relation.

Ample and adequate provision has been made by statute whereby the plaintiff's husband may be required to discharge every obligation imposed upon him by law, not only toward the plaintiff, but also in behalf of their children. There is no averment that the husband has failed in any of these particulars. In that respect the injunction is based upon the apprehension of the plaintiff that she may in the future be deprived of support, by reason of the alleged alluring conduct of the defendant toward plaintiff's husband.

Such extension of the jurisdiction of equity to regulate and control domestic relations, in addition to the legal and statutory remedies already provided, in our opinion is not supported by authority, warranted by sound reason, or in the interest of good morals or public policy. The opening of such a wide field for injunctive process, enforceable only by contempt proceedings, the difficulty if not impossibility of such enforcement, and the very doubtful beneficial results to be obtained thereby, warrant the denial of such a decree in this case, and require a modification of the judgment in that respect.

Judgment modified and affirmed.

ROBINSON, JONES, MATTHIAS and ALLEN, JJ., concur.

CONN, J., not participating.

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Concurrence Opinion

No one who views the marriage contract from an ethical standpoint can have sympathy for the plaintiff in error upon the record disclosed herein; however, I concur in the per curiam opinion of the majority of the court for the following reasons:

First. While it is true that any injunction is enforceable only through contempt proceedings, it is also true that this particular order is unusually difficult of enforcement. The ordinary injunction involves a prohibition against selling property or against doing some act which will involve indifferent third parties: that means that proof of the violation of the order may usually be readily secured. In this case the injunction affects two people only. Under the facts as found, these two people stand in a wrongful relationship to each other. Proof of the violation of this particular order will depend, at least largely, upon the testimony, not of indifferent third parties but of these particular two people. Under these circumstances it is difficult to see how the court can enforce the injunction granted herein without attaching a probation officer permanently to both Miss Snedaker and King.

Second. The order passes all bounds in its lack of limitation. Under this order, what is Miss Snedaker to do if she passes King upon the street? Must she cross the street in order not to go "near him * * * at * * * any * * * place where said Homer King may be," or may she stay upon the same side of the street and pass him? Under such circumstances may she say "good morning" to him, or in so doing will she be violating the order that she is not to communicate with King "by word"?

Third. This injunction should not issue, because an order that forbids a man and woman to see each other or to speak to each other under the facts herein set forth, merely adds fuel to the flame. If the wife is to be assisted in her fight for a rehabilitated home, action should not be taken which will almost inevitably make wrongdoing even more alluring to her husband.

It has been urged that to dissolve this injunction is to condone the action of the plaintiff in error. Equity, however, refuses to enjoin many acts which it does not condone. Equity will not enjoin the commission of crime. This is not because it condones the commission of crime, but because it takes no part in the administration of the criminal law. Neither does this court condone the acts set forth in the petition and found by the trial judge.

It is significant to note that the judgment against Miss Snedaker has not been reversed; the injunction only has been dissolved. Upon the facts as found by the trial court, Miss Snedaker's action is still branded in this court. That condemnation is her most adequate punishment. To add thereto a judgment, which, from the perversity of human nature, would tend to defeat rather than to accelerate the reconciliation of the husband and wife seems unwise.

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Dissenting Opinion

The statement of facts in the brief per curiam opinion shows that this is a case where a lawful, dutiful wife has invoked the aid of a court of equity to protect her marriage contract, her home, and her little brood of infant children, against a "vampire" who persists in her efforts to win the husband and father from the performance of his duties to his home and family. It must be kept clearly in mind in a discussion of this case that the husband is not a party to the suit, and that the wife, Grace King, brings the action solely against the vampire, Jessie L. Snedaker.

The case comes to this court in a very unusual and extraordinary manner. The amended petition of the wife was filed May 15, 1922, and, after motions were filed thereto and overruled, a demurrer was filed on October 24, 1922, which was promptly overruled by the court on November 3, 1922. Thereafter, on December 1, 1922, Miss Snedaker filed an answer which was a general denial. Upon the issues thus joined the parties went to trial; a jury being waived and the case being tried to the court upon the questions of injunction and damages. After full hearing, and it appearing that Miss Snedaker was not financially responsible, and Mrs. King having offered to waive any damages above $5, judgment was entered in the sum of $5. As a part of the same judgment the injunction was made perpetual. Miss Snedaker promptly prosecuted error to the Court of Appeals, but it is significant that she did not see fit to procure a bill of exceptions, and that she was content to rest her error proceedings upon the record without a bill of exceptions, and it is well settled by the practice of this court that she therefore presented in the Court of Appeals, and also in this court, only such alleged error as the petition, the answer, and the judgment of the court should disclose.

The only assignment of error in the petition in error filed in this court is that the Court of Appeals erred in refusing to reverse the judgment of the common pleas court. The unwillingness of Miss Snedaker to submit a transcript of the testimony in the trial court for the consideration of the Court of Appeals on review leaves her in no position for charitable consideration at the hands of this court. By reason of her financial irresponsibility, and the judgment for damages having been placed at the nominal sum of $5, Miss Snedaker has suffered practically no damage at the hands of the trial court, except the deprivation of the society of the husband of another woman. It is not by any means to her credit that she has prosecuted this action to the second court of review, seeking to reverse a judgment which takes nothing from her except the right to consort with this husband and father.

The lower courts having issued a perpetual injunction, this court is placed in the rather unenviable situation of restoring to Miss Snedaker certain privileges which can be of no possible benefit to the person who seeks them, and which clearly appear by this record to be of irreparable damage to the lawful wife. This court assumes the further dangerous responsibility, in reversing the judgment of the lower court, of acting without the benefit of the evidence upon which the trial court reached its judgment.

The very brief per curiam opinion of the majority of this court deserves a careful analysis.

The first sentence of the opinion is that the decree is "an extreme instance of government by injunction." This rather odious expression had its origin in the widespread criticism of injunction suits arising out of labor strikes, where it was claimed that the government was trying to maintain law and order by civil processes. Manifestly, that odious expression has no proper application to the case at bar. The very next sentence of the per curiam opinion shows that it has no application, because the second sentence states that this case is an attempt to "govern, control, and direct personal relations and domestic affairs." Again the majority opinion is inaccurate. The husband not being made a party to this suit, there can be no possible effort by judicial process to govern, control, and direct domestic affairs. This case only seeks to prevent interference on the part of a, third party with the obligations of a contract, and to prevent such third party from inducing one of the parties to a lawful contract to commit a breach thereof.

The third sentence of the per curiam opinion is equally inaccurate. The decree of the trial court does not require Miss Snedaker to remain "away from any place where plaintiff's husband may be." On the contrary, as clearly shown by the quotation from the journal entry appearing in the statement of facts, Miss Snedaker is only enjoined "from visiting or associating with Homer King, husband of plaintiff, or going to or near him at plaintiff's home or elsewhere, or any other house or place where said Homer King may be." A careful analysis of this sentence shows that the forbidden feature is "going to or near him," and that she is not forbidden to go to any public gathering where they might by chance appear at the same time, and that, if such chance meeting should occur, the injunction order would be fully obeyed by her refraining from going to or near him or communicating with him.

It is to be feared that the per curiam opinion seeks to treat this matter from a facetious stand point, and that it fails to look upon this matter in the seriousness which it deserves.

The fourth sentence of the per curiam opinion concedes that it would be a more extreme case if the husband had been made a party defendant and a court of equity should seek by a decree of mandatory injunction to require the husband to discharge his marital duties.

The fifth sentence states that ample and adequate provision has been made by statute to require the husband to discharge all his marital obligations to the wife and children, and if that sentence had omitted the words "ample and adequate" we would have no quarrel with the fifth sentence. It is true that the statute seeks to make provisions to regulate the duties of a husband and father, but surely no one would deliberately claim that such regulations are ample, and adequate to meet the requirements of the ease.

The sixth sentence states that there is no averment that the husband has failed in any of these particulars. In this the opinion of the majority is clearly in error. In the amended petition it is clearly stated that, by reason of the acts of Miss Snedaker, the wife and mother has been "deprived of the love, esteem, affection, support, and peaceful consortium of her said husband." It further charges that she will continue to be thus deprived unless relief is granted by the court. The judgment of the trial court contains the following finding:

"On consideration whereof, the court find on the issues joined for the plaintiff, and that the allegations of the petition, and each of them, are true."

It therefore follows that the seventh sentence of the per curiam opinion is unsupported by the facts.

The final paragraph of the per curiam opinion states in a few lines a discussion of the legal principles involved, and again makes it clear that the majority of the court is proceeding upon the wrong assumption that there is an attempt to regulate and control domestic relations, and states that such an attempt "is not supported by authority, warranted by sound reason, or in the interest of good morals or public policy." It shall be our task to show that there is authority for such a proceeding and that it is warranted by sound reason, but we shall not seriously attempt to inquire whether it is in the interest of good morals or public policy, because, if there is authority and reason for the exercise of such jurisdiction, a court of equity should not inquire in each individual case into the question of good morals or public policy. It must be borne in mind that equity is a separate system of jurisprudence, having its own precedents and principles, and, if there is to be any uniformity in the administration of courts of equity such precedents and principles must be followed, and it must not be left to the discretion of the chancellor in each individual case to determine for himself whether upon grounds of good morals or public policy he may decline to entertain the cause. In other words, courts of equity are not inquisitorial, but remedial.

The remaining reason set forth in the majority opinion is based solely upon the doubt therein expressed of the ability of a court of equity to adequately enforce its order by contempt proceedings. Upon this subject, it need only be stated that contempt proceedings are the only method of enforcing injunctive process, and that reason is therefore not a whit more applicable to this particular case than it is to any other case where injunction is recognized as a proper extraordinary remedy.

Let us first inquire whether the orders of the lower courts in this case are supported by authority, and whether they are warranted by sound reason. It requires no argument or citation of authority to show that the marriage relation is based upon civil contract. It follows, as the night the day, that the parties to such a contract are entitled to protection against unlawful interference with the obligations of that contract on the part of third persons. If this action were for damages alone, instead of damages and injunction, it would be conceded on all sides that the wife is entitled to maintain an action to recover a money judgment for any damages she may have suffered. It is equally well settled that the wife would be entitled to compensation, not only for loss of support, as alleged in the petition and as found by the trial court, but that she would also be entitled to recover damages for loss of consortium. Both of these elements are recognized as elements of the marriage contract and as rights of property. Any person who interferes with the marriage relation, or who seeks to induce either party to the marriage relation to commit a breach thereof, is held liable to respond in damages for such injury. And this is entirely separate and distinct from any statutory legal remedy which may be provided for the regulation and control of the marriage relation. Such an action can be maintained against any person who thus interferes, even though the offending party to the marriage relation may be entirely consenting, or even a party thereto. It is very clear, therefore, that, while certain provisions have been made by statute whereby a husband and father may be required to discharge certain marriage obligations imposed upon him by that relation, it is at the same time clearly recognized that such provisions are not ample and adequate; otherwise there would be no occasion for calling upon third persons to respond in damages. It is not necessary to cite any of a large number of authorities which have dealt with this subject, but we shall briefly discuss two cases of this court where the principles have been laid down clearly, which principles will be quite sufficient for the purposes of this discussion.

The earliest of these two cases is Westlake v. Westlake,34 Ohio St. 621, 32 Am. Rep., 397. The first syllabus declares:

"A wife may maintain an action for the loss of the society and companionship of her husband, against one who wrongfully induces and procures her husband to abandon or send her away."

In the opinion by an elaboration of argument it is shown that the wife may maintain this action in her own name, without joining her husband.

In the case of Flandermeyer v. Cooper, 85 Ohio St. 327,98 N.E. 102, 40 L.R.A. (N.S.), 360, Ann. Cas. 1913A, 983, this court decided that a wife might maintain an action against a person who furnishes morphine to her husband, he being addicted to the morphine habit, and as a result of drugs being so furnished the husband becomes impaired in mind, rendering it necessary to confine him in an insane asylum. The recovery was placed upon the ground of loss of consortium, and the first paragraph of the syllabus is as follows:

"Husband and wife are entitled to the affection, society, co-operation and aid of each other in every conjugal relation, and either may maintain an action for damages against any one who wrongfully and maliciously interferes with the marital relationship, and thereby deprives one of the society, affection, and consortium of the other."

Much is found in the opinion of Judge Donahue in that case to show that these rights are not mere personal rights, and the mere fact that a recovery is permitted sufficiently shows that they are recognized as property rights.

The cases are quite numerous in Ohio and elsewhere which recognize an action for damages for alienation of the husband's affections. Surely no further argument is needed to show that an action for damages lies in the instant case, and it is not claimed that the small judgment for damages is erroneous.

It is, of course, conceded that it is not every case where an action for damages will lie which may be made the subject-matter of injunction. It is only in those cases where damages are an inadequate remedy. It is true that, excepting one or two cases, the courts have not dealt with this identical proposition, and it is therefore a novel proposition which is presented to this court for determination. On the other hand, I am of the opinion that the principle involved in this case is exactly identical with that involved in that numerous class where equity has not hesitated to exercise its jurisdiction to protect a contract right against undue influence by persons not parties thereto. A contract right has uniformly been held to be a property right, and it has been further held that inducing a breach of such a contract is an actionable tort. While injunction does not lie in all such cases, it is very generally held that an injunction will lie to restrain third persons from inducing the breach of a lawful contract by one of the parties thereto, when it will result in irreparable injury. This has been held, regardless and irrespective of whether the defendant is insolvent, but the cases are quite uniform in holding that injunction will lie when the defendant cannot be made to respond in damages. These principles have been enforced uniformly in labor strikes, and many cases decided in recent years by the Supreme Court of the United States were quoted by this court with approval in the case of LaFrance ElectricalConstruction Supply Co. v. International Brotherhood ofElectrical Workers, 108 Ohio St. 61, 140 N.E. 899.

The leading case on that subject is Truax v. Raich,239 U.S. 33, 36 Sup. Ct., 7, 60 L.Ed., 131, L.R.A., 1916D, 545, Ann. Cas., 1917B, 283, and more recent authorities are AmericanSteel Foundries v. Tri-City Central Trades Council,257 U.S. 184, 42 Sup. Ct., 72, 66 L.Ed., 189, 27 A. L. R., 360; HitchmanCoal Coke Co. v. Mitchell, 245 U.S. 229, 38 Sup. Ct., 65,62 L.Ed., 260, L.R.A., 1918C, 497, Ann. Cas., 1918B, 461; DuplexPrinting Press Co. v. Deering, 254 U.S. 443, 41 Sup. Ct., 172,65 L.Ed., 349, 16 A. L. R., 196.

Surely the rights of an employer to the fruits of his contract with his employes are no more sacred than the rights of a wife to the consortium and support of her lawful husband.

An unbroken line of authorities establishes the proposition that equity has jurisdiction in a proper case to restrain trespass. Jurisdiction in this class of cases is ordinarily confined to those cases where, from the nature of the property affected, or because of the frequent repetition of the trespass, the injury sustained is not susceptible of remedial damages. This principle has peculiar analogy to the instant case.

Much was said in argument by counsel for Miss Snedaker to the effect that this is a mere personal right belonging to the wife. Even so, many cases have been decided to the effect that a mere personal right is within the protection of a court of equity by injunction, and I can see no reason why the courts might not properly give relief in a case involving a breach of the marriage contract, even though it should be placed solely upon the personal right.

Before entering upon a discussion of the juris diction of equity over the infringement of personal rights, it should be stated that there is a clear legal right and a property right, which, by reason of the insolvency of the defendant in this case, renders a suit for damages wholly inadequate as a remedy. We have reached the point in Ohio where there is one divorce for every five marriages, and it cannot longer be claimed that the statutes relating to marriage and divorce furnish that "ample and adequate" remedy which the majority opinion of the court in this case claims. If, as seems to be feared by the majority, the trial court will have some difficulty in enforcing the order entered in this case, that difficulty need give this court no immediate concern. I anticipate, however, that the defendant would not lightly disobey the injunction, if it is permitted to stand. The commercial interests of the state of Ohio should not be the only concern of the courts of the state. All property rights and interests, even though growing out of the marriage relation, are entitled to the care and consideration of our courts quite as much as those other interests growing out of commercialism.

In its last analysis, this controversy turns upon the simple inquiry whether there is an adequate remedy at law. It is stated in the majority opinion that our statutes make "ample and adequate provision." It is not quite clear which Code sections are referred to. If the court refers to the divorce and alimony statutes, it may be answered that a divorce would only facilitate the relations between the husband and the defendant in this case, inasmuch as the petition recites, and the decree of the court finding the same to be true establishes, that the wife, on discovering her husband's state of mind, "tried, is still trying, and will continue to try to reason with him, and to induce him to have nothing more to do with said defendant, and has forbade the said defendant to have anything to do with her said husband, but the defendant hasinformed plaintiff that she will not desist from having to dowith plaintiff's said husband." Instead of this section affording a remedy for the wife, it merely affords an avenue of satisfaction to the defendant. If the court reers to the alimony sections, it may be answered that alimony is never a satisfactory and adequate substitute for support and consortium. If the majority refer to those statutes which declare non-support of children to be a criminal offense, it may be answered that it is of no avail to the wife and infant children of this recreant husband that he might be placed in jail, or even in the penitentiary, because of his failure to furnish a proper support. It may be further answered that those statutes furnish no relief to the wife, because non-support of the wife, unless she is in a pregnant condition, is not punishable as a criminal offense.

As previously stated, all this portion of the discussion is entirely beside the question. This is not an action to compel the husband to discharge his marital duties, but, on the contrary, an action to compel the defendant to desist from her interference, and to enjoin her from continuing to induce the husband to breach the marriage contract.

It is claimed in argument that this error proceeding is prosecuted by Miss Snedaker to remove from her the alleged unjust stigma of the judgment of the trial court. The answer to that proposition is that the stigma upon her character arises out of the finding of facts against her by the trial court, and her reputation will suffer none the less by reason of the majority of this court finding as a technical legal proposition that the wife has in this case mistaken her remedy. The failure of Miss Snedaker to procure a bill of exceptions and to reverse the adjudication of fact, and her attempt only to have this court declare a technical rule of law, that the finding of fact does not support the judgment of law which has been entered, affords no relief to her character. It cannot be lightly assumed that she seeks only vindication at the hands of this court. It seems quite conclusive, on the contrary, that her real purpose is to be relieved from the inhibition of associating with plaintiff's husband.

The action at law having been determined against defendant, and a judgment entered thereon, the logical position of the defendant in this case, and therefore the logical position of the majority of this court, is that she is entitled to continue her course unrestrained and unhindered, and that she is only subject to further and repeated suits for damages, and to suffer repeated judgments which she will be unable to pay.

Having so far discussed the legal questions involved as being based upon property rights, I do not wish to be understood as conceding that equitable jurisdiction will lie only to protect property rights. In a great number of cases American courts have exercised the extraordinary writ of injunction to protect purely personal rights. Without quoting, or even citing, the long list of cases in which this principle has been declared, it is sufficient to say that the cases relate to the education and custody of children, privacy, and reputation, the publication or exhibition of photographs, the publication of private correspondence, the security of the person, the protection of health and comfort, and many other phases of purely personal right. The case of Ex parte Warfield,40 Tex. Cr. R., 413, 50 S.W. 933, 76 Am. St. Rep., 724, decided by the Court of Criminal Appeals of Texas, is quite similar in its facts to the case at bar. It was an action for the writ ofhabeas corpus to secure the release of Warfield, who had been sent to jail for contempt for violating an injunction order very similar to the order in the case at bar. The injunction order prohibited Warfield from continuing his attentions to the wife of one Morris. The court did not treat the injunction order as a finality, but discussed the matter from the standpoint that the injunction order would have been a nullity, unless the court making the order had equitable jurisdiction to make it. In discussing the matter, the court stated that the marriage contract gave rise to property rights, but further stated that, even though the right should be considered a personal one, equitable process might be invoked.

In the case of Stark v. Hamilton, 149 Ga. 227, 99 S.E. 861, 5 A. L. R. 1041, the court held that a father might obtain an injunction to restrain the attempts of a person to debauch his minor child, and to induce her to abandon her parental abode and live in a state of adultery. In concluding the opinion, the court, all justices concurring, made the following pronouncement:

"It is difficult to understand why injunctive protection of a mere property right should be placed above similar protection from the continual humiliation of the father and the reputation of the family. In some instances the former may be adequately compensated in damages, but the latter is irreparable; for no mere money consideration could restore the good name and reputation of the family, or palliate the humiliation of the father for the continual debauching of his daughter."

In fairness to the majority of this court and to counsel for Miss Snedaker, it must be stated that they do not contend that Miss Snedaker has a legal right to alienate the affections of Mr. King. or to solicit his continued attentions to her, or to impose her attentions upon him, but the contention is that the only recourse of the wife against the vampire is a judgment for damages, which she is unable and unwilling to pay, and that the vampire is immune from equitable process, because the statutes give the wife certain legal recourse against the husband, which the majority of this court deem ample and adequate.

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Dissenting Opinion

Finding myself unable to concur in the judgment of reversal reached by the majority, it seems fitting that I should give my own conclusions and the authorities relied upon to support the same.

This record is purposely made by counsel to raise the question whether, when the personal and property rights of the wife in the marriage relationship, to support, consortium, and the right to win and hold the affections of her husband, are invaded by the willful and malicious acts of another, and it being conceded that an action at law for damages is inadequate, equity may enjoin the further interference; in other words, how far shall the jurisdiction of a court of equity be used to protect purely personal rights as well as property rights, or those rights that border closely upon property rights yet are really of a personal character? The question, then, is entirely one of jurisdiction.

Formerly equity jurisdiction extended only to the protection of property rights, yet of late years a tendency has developed to extend the jurisdiction to include personal rights, at least to some extent.

"While it is a commonly accepted theory that their jurisdiction must rest upon rights of property, there are at least many exceptions to the rule; among them, cases of contract, trust, or breach of confidence relating to personal rights, cases respecting the education and custody of children, and cases relating to the right of privacy and reputation, such as those restraining the publication or exhibition of photographs or other representations of the person, and the publication of private letters. In addition to these are the cases relating to the security of the person and the protection of health and physical comfort. While in many of these cases the jurisdiction is nominally based on an alleged property right, it is plain that the observance of the rule that equity will be limited to rights of property is little more than nominal. In all this class of cases equity does concern itself about personal rights as the real subject of consideration." 37 L.R.A., 787; 14 A. L. R., 286-295.

By statute in the state of Ohio, husband and wife contract toward each other obligations of mutual respect, fidelity, and support, and the husband must support himself, his wife, and his minor children out of his property or by his labor, and if he is unable to do so the wife must assist him so far as she is able.

It is not to be denied that the wife has certain inalienable rights growing out of the marriage relationship, which must be viewed in a somewhat broader aspect than that of a mere civil contract, it being a status, and may be defined as a union of one man and one woman for life, to the exclusion of all others.

It has long been the law of this state that the wife has a right of action for damages against those who alienate the affections of her husband, or deprive her of the right of consortium or his support, and even though the husband be a willing party to such deprivation or alienation, yet the action will lie. Flandermeyer v. Cooper, 85 Ohio St. 327,98 N.E. 102, 40 L.R.A., (N.S.), 360; Ann. Cas., 1913A, 983;Westlake v. Westlake, 34 Ohio St. 621, 32 Am. Rep., 397.

In the latter case the court, speaking by Gilmore, C.J., on page 633, says:

"Is the right of the wife to the consortium of the husband one of her personal rights? If it is, then the statute makes the right of action, growing out of an injury to the right, theseparate property of the wife, for which the Code gives her a right to sue in her own name. * * * When the agreement to marry is entered into, but before its consummation, each has the same interest in it, and either may sue for a breach of it by the other. In this state, neither the husband nor wife unconditionally surrenders their personal rights by consummating the contract of marriage. On the contrary, each acquires a personal, as well as legal, right to the conjugal society of the other, for the loss of which either may sue separately."

Donahue, J., in Flandermeyer v. Cooper, supra, says, at page 340 (98 N.E. 105):

"Consortium is defined to be the conjugal fellowship of husband and wife, and the right of each to the company, co-operation and aid of the other in every conjugal relationship. Bigaougette v. Paulet, 134 Mass. 123.

"This right is invaded whenever a third person, through machination, enticement, seduction, or other wrongful, intentional, and malicious interference with the marriage relation, deprives the husband or wife of the consortium of the other."

When damages may be recovered at law for the invasions of this right, we see no reason why equity may not enjoin, when the legal remedy fails, and we must accept as conceded in this case that the money action for damages is inadequate, owing to the financial irresponsibility of the defendant below.

The jurisdiction of a court of equity to protect marital rights by injunction has heretofore been recognized. In Exparte Warfield, 40 Tex. Cr. R., 413, 50 S.W. 933, 76 Am. St. Rep., 724, the right was recognized in an action denying habeascorpus to one who was imprisoned in jail upon a contempt charge for violating an order restraining the defendant from writing to, speaking to, or talking with, the plaintiff's wife, whose affections he had already partially alienated from her husband.

It is true that the case arose on habeas corpus, and hence should not be regarded as controlling, but the principle of the power of equity to enjoin those who interfere with the marriage relation is clearly recognized.

In discussing this case, Dean Pound, in 29 Harvard Law Review, p. 674, says:

"If the order had been appealed from, there might have been a serious question as to the expediency of exercising the jurisdiction. The chancellor would have to consider whether he could reasonably expect to accomplish anything by such an injunction; to consider whether a situation where the defendant was in jail because he persisted in seeing her would not be likely to fan the wife's erring affection for defendant, and to consider that he could not keep the wife away from the defendant, even if he could keep the defendant away from the wife. But these considerations are not relevant to thequestion of jurisdiction. * * *

"Two circumstances, however, detract somewhat from the weight of Ex parte Warfield as an authority. There was a statute in Texas which the courts of that state construe as giving a wider power of granting injunctions than that possessed by courts under the general equity doctrine. Also, it might be urged that at common law the husband has a legal right to the services of the wife, which is to be regarded as a property right, and hence that equitable relief may be invoked to secure that right, and may be employed incidentally to secure the more significant interests of a purely personal nature. Thus the case could be brought within the analogy of Gee v. Pritchard, [2 Swanst. 402]. But it is significant that the property right of the husband in the wife's services, now thoroughly moribund for all substantial purposes, should acquire a temporary vitality to enable the courts to secure interests of personality which they hesitate to protect avowedly as such."

In Stark v. Hamilton, 149 Ga. 227, 99 S.E. 861, 5 A.L.R., 1041, a father secured an injunction against those who were keeping his minor daughter in prostitution; the injunction being grounded not only upon the grounds that the father had the property right in the services of his minor daughter, but that he had a further right to have and to keep her within his home, and not to be interfered with by others who might prevent him from reforming his minor daughter and recovering her good name, and leading her into the paths of rectitude. Ex parte Warfield is cited with approval in this case.

Counsel for plaintiff cite the case of Hodecker v. Stricker (Sup.), 39 N.Y. Supp., 515. The same does not, however, apply, for the reason that in that case the plaintiff was not then being deprived of any support or consortium, and the purely personal right of some other woman using her name and thus scandalizing and injuring the plaintiff was not deemed sufficient for the jurisdiction of the court of equity, "there being no allegation that plaintiff still lives with him, or that her cohabitation with him was discontinued for any cause attributable to defendant," which fact sufficiently distinguishes Hodecker v. Stricker, supra, from the case at bar.

Hall v. Smith, 80 Misc. Rep., 85, 140 N.Y. Supp., 796, was an action brought by the plaintiff, the wife, against the defendant, a woman, who was charged with having enticed away, or alienated from the plaintiff, the love and affection of her husband, whereby the plaintiff had been deprived of the society of her husband ever since the time when he first met the defendant. Finding that it is the settled law that the wife may maintain a suit for alienation of the affections of her husband and consequent loss of consortium, the court says, at page 87 (140 N.Y. Supp., 798):

"The motion which has been made in this action requires the determination of the question whether in such an action an injunction order may and should be made to restrain the defendant pendente lite from the continuance of those acts which lie at the foundation of the cause of action. While the question is most unusual, in respect of the power of the court to grant such relief, I have no doubt whatever that in a proper case the right to grant such an injunction resides in the court of equity, and that it is not unduly extending the jurisdiction or cognizance of the court to restrain the impending, threatened, or continued commission of such acts as are violative of the rights of a plaintiff in a suit of this character."

We regret that the record in this case is not more full, as we are denied anything save the amended petition, the answer, which is a general denial, and the journal entry, which finds that" the allegations of the petition and each of them are true," and that the plaintiff is entitled to the relief prayed for.

The averments of the amended petition are very broad, charging the defendant below for a period of over five years of wickedly, purposely, and maliciously intending to win from plaintiff the affections of her husband, his companionship, support, love, and to appropriate the same to herself, and that the defendant, unless restrained by an order of court, in order to prevent the plaintiff from regaining the love, esteem, affection, cooperation, aid, and support, and conjugal relation of her husband, will wickedly, maliciously and purposely continue to do and perform each and all of the matters and things complained of, by reason of which the plaintiff will be prevented from regaining the love, esteem, affection, support, and conjugal relation of her said husband. There is an averment of the insolvency of the defendant and the inadequacy of any legal remedy.

While these averments of the amended petition are denied by answer, there is no testimony in the record, and we are informed by counsel that no trial was in fact had, but that a waiver of any damages over the sum of $5 was made by the plaintiff, and the defendant below was enjoined as heretofore set forth.

We are therefore denied any opportunity to know what a full hearing would have developed, but must reach our conclusion simply upon the single question presented, to wit: Has a court of equity jurisdiction to enjoin such an invasion of the personal and property rights of the plaintiff below when no adequate remedy at law exists?

I think, technically, the jurisdiction exists, but that the expediency of granting such relief and its enforcement are serious questions for the trial judge, sitting as a chancellor, to determine in the first instance. We simply sit as a reviewing court to determine the power of a court of equity in the premises.

It is unfortunately true that the law cannot produce or make happy marriages by its order and decree, and the ability of a court of equity to compel obedience by the husband of his marital duties toward his wife, by restraining his paramour from seducing him from his wife, is extending such power a great way; the law already giving some remedy, even though the same may not always be fully adequate.

For reasons of expediency and public policy, the chancellor might well refuse the assistance of a court of equity, as the consortium, affection and support of a husband that must be vouchsafed to the wife by an injunction restraining other women from enticing him from his wife are of such doubtful value and character that the action of a court of equity would avail very little to benefit the wronged spouse.

If divorce, alimony, damages for alienation of affection, or arrest for nonsupport of minor children, are all of no avail, surely the decrees of a court of equity may not bring back the love, affection, esteem and consortium of which so worthless a husband deprives his wife. But these are matters for the consideration of the trial judge, and not for a reviewing court.

While the marriage relation should be kept out of court, rather than be allowed to go into court to adjust its wrongs and grievances, fancied or otherwise, yet I cannot say that, when all other means have failed, a court of equity has no power in the premises.

A good statement of equitable principles applicable to the present situation is found in 4 Pomeroy's Equity Jurisprudence, Section 1338:

"In determining whether an injunction will be issued to protect any right of property, to enforce any obligation, or to prevent any wrong, there is one fundamental principle of the utmost importance, which furnishes the answer to any questions — the solution to any difficulties which may arise. This principle is both affirmative and negative, and the affirmative aspect of it should never be lost sight of, any more than the negative side. The general principle may be stated as follows: Wherever a right exists or is created by contract, by the ownership of property or otherwise, cognizable, by law, a violation of thatright will be prohibited, unless there are other considerations of policy or expediency which forbid a resort of this prohibitive remedy. The restraining power of equity extends,therefore, through the whole range of rights and duties whichare recognized by the law, and would be applied to every caseof intended violation, were it not for certain reasons ofexpediency and policy which control and limit its exercise. This jurisdiction of equity to prevent the commission of wrong is, however, modified and restricted by considerations of expediency and of convenience, which confine its application to those cases in which the legal remedy is not full and adequate. Equity will not interfere to restrain the breach of a contract, or the commission of a tort, or the violation of any right, when the legal remedy of compensatory damages would be complete and adequate. The incompleteness and inadequacy of the legal remedy is the criterion which, under the settled doctrine, determines the right to the equitable remedy of injunction."

Applying this doctrine to the present instance, we are confronted with the absolute finding of the courts below that the plaintiff in error is financially irresponsible; hence the inadequacy of the legal remedy.

I am of opinion that the injunction granted in the present instance was far broader than necessary, and that as far as the injunction should go would be to enjoin the plaintiff in error from visiting or associating with defendant in error's husband, and from doing any act preventing or tending to prevent the husband from giving to his wife the love, affection, companionship or conjugal relation to which she is entitled, and that the plaintiff in error should not interfere with the defendant in error in her efforts to regain the love, esteem, affection, support and conjugal relation. If the injunction were modified in this form, and, considering the matter as a pure question of equitable principles concerning personal and property rights growing out of the marriage relation, I am, in the light of Flandermeyer v. Cooper, supra, and Westlake v.Westlake, supra, constrained to the conclusion that the equitable power exists, even though it should rarely be exercised, and that, therefore, the conclusion of the courts below should be affirmed.