redress as to insure denial. In a case of this kind the wife can only ask for damages by and for herself. The law cannot make redress otherwise than to her solely, apart from all others, especially apart from her husband";

and the conclusion is reached that, of legal necessity, the damages for the injury must be to her solely, and the suit could therefore be maintained in her own name at common law. In Lynch v. Knight, 9 H. L. Cas. 577, Lord Chancellor Campbell thought that the wife could sue with her husband. Lord Cranworth was inclined to that view, but did not feel called upon to express a decided opinion, as the case was to be disposed of on other grounds. Lords Brougham and Wensleydale thought an action would not lie. In Bennett v. Bennett, 116 N. Y. 584, 23 N. E. 17, 6 L. R. A. 553, the Court said:

"A remedy not provided by statute, but springing from the flexibility of the common law and its adaptability to the changing nature of human affairs, has long existed for the redress of the wrongs of the husband. As the wrongs of the wife are the same in principle, and are caused by acts of the same nature as those of the husband, the remedy should be the same."

That case, however, based the right to maintain the action on the statute. It fully recognizes the right of the wife to damages for injury to her, but questions her right to sue at common law, unless her husband joins, and holds that the Code of that State, authorizing her to sue alone, enabled her to maintain a suit of this character. Some authorities hold that the common law gives a married woman a cause of action, but by reason of her disability of coverture the right remains in abeyance while she is married. There are others in which her right to damages is regarded as belonging to her at common law, and hence she can recover under statutes enabling her to sue as a feme sole; and still others sustain her right to sue under statutes giving equal rights to husband and wife, irrespective of any substantive right existing at common law. For authorities on the several grounds, see, in addition to the above, Haynes v. Nowlin, 129 Ind. 584, 29 N. E. 389, 14 L. R. A. 787; Holmes v. Holmes, 133 Ind. 386, 32 N. E. 932; Seaver v. Adams, 66 N. H. 142, 19 Atl. 776; Warren v. Warren, 89 Mich. 123, 50 N. W. 842, 14 L. R. A. 545; Clow v. Chapman, 125 Mo. 101, 28 S. W. 328, 26 L. R. A. 412 (s. c. 46 Am. St. Rep. 468, where there is an extensive note on the subject); Hodgkinson v. Hodgkinson, 43 Neb. 269, 61 N. W. 577, 27 L. R. A. 120; Westlake v. Westlake, 34 Ohio St. 621; Price v. Price, 91 Iowa, 693, 60 N. W. 202, 29 L. R. A. 150; Gernerd v. Gernerd, 185 Pa. St. 233, 39 Atl. 884, 40 L. R. A. 549; and 15 Am. & Eng. Enc. Law (2d ed.) 864, where many of the above and other cases are cited.

Under our statute (section 5, art. 45, Code, as amended by Acts 1898, c. 457), married women have the power

"to sue for the recovery, security or protection of their property, and for torts committed against them, as fully as if they were unmarried.”

As it is applicable to this case, there would seem to be no room to doubt that the appellee can, in her own name, maintain this suit. That, in our opinion, she had a cause of action is apparent from what we have already said. Whether or not it was possible for her to enforce such a claim at common law while still married is not now material. We have frequently held that for personal injuries to a wife she must at common law sue jointly with her husband; but if he died before judgment the action did not abate, but could be prosecuted by the widow, and, even if he died after judgment without disposing of it, it survived to her. "Independently of his wife, the husband had no cause of action whatever for personal injury to her." Clark v. Wootton, 63 Md. 115.

Of course that does not refer to his right to sue for loss of services, expenses incurred, etc., by reason of the injury to his wife. Manifestly, then, the wife had at common law a cause of action for such injuries, although she was prevented from enforcing it during coverture without the joinder of her husband. In cases of this character, if it be admitted (although we do not determine that question) that she could not have sued at common law during coverture because her husband was a necessary party, and he ought not to be party to a suit brought to recover damages sustained through his own misconduct, yet if he had been dead, or had abandoned his wife and left the State, as in Wolf v. Bauereis, 72 Md. 481, 19 Atl. 1045, 8 L. R. A. 380, before the suit was brought, she could have sued as if she were a feme sole, for her disability would then have been removed. . . . This suit was brought fifteen months after the act of 1898 took effect, and there is nothing in the declaration to show that the cause of action arose before that time; but, if it had, it would not have, for that reason, been defective or demurrable. The demurrer was properly overruled.

3. We think, however, there was error in the ruling as presented in the second bill of exceptions. . . . The judgment must therefore be reversed for that error. Judgment reversed, and new trial awarded, the appellee to pay the costs.

87. KROESSIN v. KELLER

SUPREME COURT OF MINNESOTA. 1895

60 Minn. 372, 62 N. W. 438

APPEAL by defendant from an order of the District Court for Stearns County, Searle, J., overruling a demurrer to the complaint. Reversed. Theo. Bruener and D. T. Calhoun, for appellant. At common law the actions by a husband for enticing away his wife and for criminal conversation were distinct. The basis of the action for criminal conversation does not exist where the wife is plaintiff. Doe v. Roe, 82 Me. 503, 20 Atl. 83; Duffies v. Duffies, 76 Wis. 374, 45 N. W. 523.

The acts relating to married women do not create any new cause of action. The wife had no cause of action at common law. See Winsmore v. Greenbank, Willes, 577; Bigelow, Lead. Cas. 328. The cases relied on to sustain the action are nearly all for enticing away.

Geo. H. Reynolds, for respondent. Under G. S. 1894, § 5530, the wife "shall receive the same protection of all her rights, as a woman, which her husband does, as a man; and for any injury sustained to her reputation, person, property, character, or any natural right, she shall have the same right to appeal, in her own name alone, to the Courts of law or equity, for redress and protection that her husband has to appear in his name alone." In States where there are statutes not nearly so broad and comprehensive as in Minnesota, a married woman can maintain an action for alienation of her husband's affections. Card v. Foot, 57 Conn. 427, 18 Atl. 1027; Bennett v. Bennett, 116 N. Y. 584, 23 N. E. 17; Jaynes v. Jaynes, 39 Hun, 40; Mehrhoff v. Mehrhoff, 26 Fed. 13; Cooley, Torts (2d ed.), 267, note 2; Holmes v. Holmes, 133 Ind. 386, 32 N. E. 932; Waldron v. Waldron, 45 Fed. 315; Reed v. Reed, 6 Ind. App. 317, 33 N. E. 638.

COLLINS, J. This is an action brought by a married woman against one of her own sex to recover damages, following, in a general way, the common-law form of declarations in crim. con. A general demurrer to the complaint was overruled in the Court below, and by this appeal we are required to determine whether such an action can be maintained; the right to recover being based solely on alleged adulterous acts between plaintiff's husband and the defendant. It is to be noticed here that it is not alleged that the defendant was the seducer of the husband, or that the plaintiff has been deprived of his support; nor is it an action for enticing the husband away, or for inducing him to abandon or desert his wife.

We are quite safe in saying that at common law no such action could have been maintained. The injured husband alone brought crim. con., and he could sustain the action by simply showing adulterous intercourse. The grounds on which the right to recover was based are well stated in Cooley on Torts, 224; and the principal elements were the disgrace which attached to the plaintiff as the husband of the unfaithful wife, and no such disgrace has ever rested upon the wife, if there was one, of the guilty defendant, and, of more importance, the danger that a wife's infidelity might not only impose on her husband the support of children not his own, but, still worse, cast discredit upon the legitimacy of those really begotten by him. Because of these elements, the man was always conclusively presumed to be the guilty party. In the eye of the law the female could not even give her consent to the adulterous acts, and, as a result, it was no defence in this form of action that the defendant had been enticed into criminal conversation through the acts and practices of the woman. From this statement as to the grounds or elements constituting this action, it will be seen that

the principal ones cannot possibly exist or be involved in a similar action brought by a wife. And what has been said about the unavailability of the defence that the defendant himself was the victim, and not the seducer, is suggestive of what the Courts might have to hold to be the rule of pleading, and what they might have to inquire into upon the trial of an action of this kind. Would it be held, following the old rule we have mentioned, and for which the reason seems well founded, that it was no defence for the female sued to allege and prove that she was the party seduced, and that the greater wrong and injury had been inflicted upon her, not upon the plaintiff wife? or would the contrary rule prevail? But we need not consider the subject further, for a moment's reflection will suggest the remarkable results flowing from the adoption of either rule.

We have been cited to quite a number of cases determined in the courts of last resort in this country, in which it has been held, without much stress being laid on statutes concerning the rights of married women, that an action may be maintained by a wife against one who wrongfully induces and procures her husband to abandon and send her away. Westlake v. Westlake, 34 Ohio St. 621, the Court being divided in opinion, is a leading case on this view of the subject. A later one, announcing the same doctrine, but made to rest much more on the married woman's acts in the State of Michigan, and similar to our own, is Warren v. Warren, 89 Mich. 123, 50 N. W. 842. The plaintiff's counsel has been industrious in collecting this class of cases in his brief, and to them we add Price v. Price (Iowa), 60 N. W. 202. But even on this proposition, and despite broad statutory enactments affecting the rights of married women, the Courts are not entirely agreed, for in Maine and Wisconsin it has been held that such an action cannot be maintained. Doe v. Roe, 82 Me. 503, 20 Atl. 83; Duffies v. Duffies, 76 Wis. 374, 45 N. W. 522. But we need not decide as between these cases, for the exact question raised by the demurrer here was not the one under consideration in any we have cited. They were brought for enticing away the husband; causing him to withdraw his support from the wife; to abandon or desert her, an entirely distinct and separate cause of action from that set out in the plaintiff's complaint. At common law this form of action was wholly different in pleadings and proof, as well as parties, from crim. con. It proceeded, and still proceeds, upon different grounds, and we do not regard cases of that nature as authority in this.

We are not unmindful of the fact that plaintiff's counsel has presented two cases Seaver v. Adams (N. H.), 19 Atl. 776, and Haynes v. Nowlin, 129 Ind. 581, 29 N. E. 389 — in which it is held that an action by a wife against another woman, based on a complaint very much like this, will lie. But in these cases the authorities before referred to are cited and relied on as directly in point. The Courts rendering these decisions do not seem to have considered that there is, and inevitably must

be, a marked distinction between an action charging a defendant with having induced and enticed a husband to withdraw his support from his wife and to abandon and desert her, and one similar to crim. con. We think the difference noticeable and material, although we do not wish to be understood as holding that the one first mentioned will lie. That question is not before us, and we simply express our conviction that a wife cannot maintain an action in the nature of crim. con. Such actions would "seem to be better calculated to inflict pain upon innocent members of the families of the parties than to secure redress to the persons injured." The power to bring such actions would furnish wives "with the means of inflicting untold misery upon others, and little hope of redress for themselves."

We find nothing in our statutes in respect to the rights of married women which indicates that the power to proceed in this form of action was intended to be conferred. Attention has been called to G. S. 1894, sec. 5530 (Laws 1887, c. 207, § 1). We have heretofore had occasion to comment upon that act, and have not changed our views as then expressed. Althen v. Tarbox, 48 Minn. 18, 50 N. W. 1018.

Order reversed.

8S. FENEFF v. NEW YORK CENTRAL & HUDSON RIVER RAILROAD COMPANY

SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1909

203 Mass. 287, 89 N. E. 436

EXCEPTIONS from Superior Court, Worcester County; Gaskill, Judge.

Action by Melinda Feneff against the New York Central & Hudson River Railroad Company. Verdict was returned in favor of defendant, and plaintiff brings exceptions. Overruled.

Clarence E. Tupper, for plaintiff.

Ralph A. Stewart and L. R. Chamberlin, for defendant.

Chas. M. Thayer and Alex. II. Bullock, for Boston & M. R. R. KNOWLTON, C. J. The plaintiff's husband was injured physically and mentally by the negligence of the defendants, and he has recovered full compensation for his injuries. Feneff v. Boston & Maine Railroad et al., 196 Mass. 575, 82 N. E. 705. The plaintiff sues for damages suffered by her from his injury, by reason of her relation to him as his wife. In her declaration she avers that, by reason of his disability, she has endured great suffering and anxiety, and has been obliged to assume heavy and arduous duties which she did not have to assume before the injury, and that she has lost the comfort, society, aid, and assistance of her husband. In her bill of exceptions she says that the action is "for