YOUNG v. YOUNG
3 Div. 256
Supreme Court of Alabama
June 9, 1938
Rehearing Denied Oct. 6, 1938. Further Rehearing Denied Nov. 10, 1938.
184 So. 187
KNIGHT, Justice.
When the jurisdiction of the court is thus invoked by petition setting forth all the jurisdictional facts, and the cause proceeds to final decree based upon a finding of the truth of such facts, such decree is an adjudication of the matters so presented.
Wе must, therefore, hold, in line with the long established law of this state, that this proceeding allotting these lands to the widow, was an adjudication of all the facts necessary to vest in her the fee to the property, including an adjudication that the decedent left no minor сhild; and the verity of such finding cannot be questioned on collateral attack. Jones v. Hubbard, 208 Ala. 269, 94 So. 167; Berry et al. v. Manning et al., 209 Ala. 587, 96 So. 762; Bedwell et al. v. Dean et al., 222 Ala. 276, 132 So. 20; Keenum et al. v. Dodson et al., 212 Ala. 146, 102 So. 230; Quick v. McDonald, 214 Ala. 587, 589, 108 So. 529; Williams v. Overcast, supra; Miller et al. v. Thompson et al., 209 Ala. 469, 96 So. 481.
Mindful of the injustice that may be done by proceedings in cases of this character, especially when instituted after great lapse of time, and interested parties are without notiсe of same, this court has consistently upheld bills in equity in the nature of bills of review to vacate such proceedings on the ground of fraud, among them cases wherein a widow alleges there was no minor child entitled to share in the exemption, and such allegation is knоwingly false. Keenum v. Dodson, supra; Quick v. McDonald, supra; Cogburn v. Callier, 213 Ala. 46, 104 So. 330; Lester et al. v. Stroud et al., 212 Ala. 635, 103 So. 692.
An issue of fact was raised as to whether Warren Dew was lawfully married to Patsy. Soon after the death of Hatcher in 1895 she married one Johnson, who later deserted her, disappeared, and, according to plaintiff‘s witnesses, was never heard from. His disappearance was more than twenty-five years before Patsy‘s death. She married Dew in 1921 and they lived as husband and wife for thirteen years. Evidence for defendant tended to show Johnson was seen alive in Pratt City five or six years before Patsy‘s death. No divorce was had by Patsy. This wаs an issue of fact for the jury.
The argument for appellants on this issue is directed to the court‘s oral charge to the jury on the presumption of death after seven years unexplained absence unheard from, etc. There was no exception to the court‘s charge on this line and no discussion is called for.
A possessory action was brought in a Court of Justice of Peace jurisdiction, was carried by certiorari to the Circuit Court, and tried at the same time on same evidence, but submitted to the jury for separate verdiсt. The trial court submitted this case to the jury as an action of forcible entry and detainer. No exception was reserved to such instruction. The evidence supported a verdict for plaintiff in this action.
Affirmed.
ANDERSON, C. J., and GARDNER and FOSTER, JJ., concur.
KNIGHT, Justice.
In support of the application for rehearing in this сause the appellant‘s counsel has filed very earnest and elaborate briefs. In the light of these extensive arguments, we have again carefully considered the Legislative Act now for the first time before the Court. The title of the Act reads: “To abolish causes of action for alienation of affections, criminal conversation, seduction of any female person of the age of 21 years or over, and breach of contract to marry.”
The enactment under this title, so far as here important, is embodied in оne sentence, which reads: “All civil causes of action for alienation of affections, criminal conversation and seduction of any female person of the age of 21 years or over, and all causes of action for breach of contrаct to marry are hereby abolished.” Section 1.
Further provisions of the statute deal with the same causes of action which had already accrued, or which may accrue under the existing contracts of marriage.
Clearly the quoted sentence abolishеs certain causes of action under existing law, designated by the usual legal terminology. Four classes of action are included.
The point of divergence is in the meaning and application of the phrase “of any female person of the age of 21 yеars or over.” Appellant argues this provision refers to and limits each of the causes of action theretofore listed.
To make plain this contention, when written out in full, the statute would read: “All civil causes of action for alienation of affections of any female person of the age of 21 years or over, all civil causes of action for criminal conversation of (with) any female person of the age of 21 years or over, all civil causes of action for seduction of any female pеrson of the age of 21 years or over, and all causes of action for breach of contract to marry, are hereby abolished.”
Such construction admittedly restricts the Act to a very narrow and limited field of operation. It would leave unaffected all actions on the part of a wife of any age for the alienation of the affections of her husband, and all actions for criminal conversation with her husband. It would abolish all such actions by the husband where the wife was of the age of 21 years or over.
Actions for alienation of affections and for criminal conversation are both based upon the marriage relation—actions for the loss of consortium between the spouses from the wrongful acts of others. Alienation of affections is the robbing of husband or wife of the conjugal affection, society, fellowship and comfort which inheres in the normal marriage relation. Criminal conversation is the defilement of the marriage bed, sexual intercourse of an outsider with husband or wife, a breaking down of the covenant relation to “keep thee only unto him or her so long as you both shall live.”
By the ancient common law both these actions were limited to the husband alone.
The emancipation of married women by modern legislation, conferring upon them equality in personal and property rights, led to equality of right in the protection of the marriage relation. So that, in modern England and in most American States a cause of action for alienation of
This was the law of Alabama at the time of the passage of this act, notwithstanding a statute expressly conferred on the husband a cause of action for criminal conversation, making no mention of the wife.
Appellant‘s construction of this statute would strike down such actions in favor of the husband, unless the wife was under 21 years of age, but leave all actions for alienation of the husband‘s affections, or for criminal conversation with him, unaffected. In other words, it would create the same inequаlity in favor of the wife which the ancient common law gave to the husband.
Neither the wording, nor the reasons for the passage of this act, warrants any such construction.
Behind the husband‘s right to sue for criminal conversation with his wife is the hazard of spurious offspring to be fathered and supported.
To impute to the legislature an intent to strike down such cause of action by the husband, but leave open to the wife a cause of action against another woman for criminal conversation with her husband is wholly unwarranted.
The well known reasоn for striking down the causes of action named in the act, all growing out of relations between the sexes, was in response to a public sentiment, after wide discussion, to the effect that such actions had been so abused, made the means of exploitation аnd blackmail, that the existence of such causes of action had become of greater injury than of benefit to society. That the legislature regarded these abuses as limited to the male sex, we are not prepared to assert.
The first three causеs of action dealt with by the statute are actions ex delicto. The statute abolishes all civil causes of action therefor, leaving all criminal causes of action for the redress of such wrongful acts still in force. They are listed in one series for this purpоse. The action for breach of contract of marriage is per se a civil action ex contractu, and, therefore, was not included in the list of civil causes of action in the sentence above quoted.
In our opinion the words: “Seduction of any female person of the age of 21 years or over,” are merely definitive of the third class of civil causes of action abolished by the Act.
It leaves in force all civil causes of action then known to the law for seduction of any female who had not reached 21 years of age.
Written out in extenso we think the statute enacts: All civil causes of action for alienation of affections of husband or wife, all civil causes of action for criminal conversation with husband or wife, and all civil causes of actiоn for seduction of any female person of the age of 21 years or over, and all actions for breach of contract to marry, are hereby abolished.
As before shown “female person” is inapt as applied to actions for alienation оf affections or criminal conversation. These relate to husband and wife. There is and was no civil cause of action for alienation of affections, or criminal conversation with a female, as such.
Seduction on the other hand, is a wrong directed sрecially against the female, as such; causing the female, chaste at the time, to surrender her virtue, through the seductive arts and inducements recognized by law.
At common law, seduction was not a criminal offense. It is now and has long been a statutory felony in this State.
At common law a woman had no civil cause of action for her seduction. Phillips v. Ashworth, 220 Ala. 237, 124 So. 519.
A civil cause of action was recognized in favor of a parent or person in loco рarentis, but based upon the relation of master and servant. There must have been a loss of services, or a loss of a right to services of the seduced. 57 C.J. 19, § 33; Roberts v. Connelly, 14 Ala. 235.
In this case of Roberts v. Connelly, decided in 1848, the court expressed regret that the law afforded no redress for the
Following that decision the
No stress should be put upon coupling “criminal conversation” with “seduction” by the conjunction “and.” This is entirely appropriate in connecting the last of a series, in which others are separated by commas.
In the title, as well as in Section 3 of the Act, the entire clause, “Seduction of any female person of the age of 21 years or over,” is separated by commas from the other causes of action dealt with in the Act.
Criminal cоnversation is not only limited to the marriage relation, while seduction is despoiling the chaste female, but the culpability of criminal conversation has little relation to the age of the woman. She may wantonly engage in criminal conversation, even be the aggressor inviting such breach of fidelity to her husband. In such case the young wife would be no less culpable than the old.
Much may be said touching the wisdom of this statute as applied to individual cases which may arise under any of the erstwhile causes of action thus stricken down. This is for legislative consideration.
We deem it important in this, the first case for construction of the statute, that its meaning be correctly announced.
The language of the act, construed in the light of the well defined terminology there employed, we are convinced, strikes down all causes of action for criminal conversation as well as for alienation of affections.
Such being our conclusion, it results that plaintiff had no right of action, and that the demurrer to her complaint was properly sustained. The judgment is accordingly аffirmed.
It follows, therefore, that the application for rehearing is overruled, the former opinion is withdrawn, and the foregoing opinion is substituted therefor.
ANDERSON, C. J., and BOULDIN, J., concur in opinion.
FOSTER, J., concurs in the conclusion, but is of the opinion that it is not necessary to determine in this case that all actions for criminal conversation are abolished.