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no default or negligence on his part. In this instance however, the reception and payment for a telegram sent collect, the warranty only goes to the exemption of the receiver of the telegram from loss occasioned by its reception or action on it when action concurring with the prior negligence of the company occasions loss. A telegram is sent collect and negligently altered in its transmission, yet requiring immediate action, and the receiver without notice of the alteration acts to his loss. Here the cause of action may be based on the tort negligence, or on the implied contract. The result would be the same if there was negligent delay, the plaintiff being free from fault. In this case if the cause of action is founded on the tort negligence, the loss of the fees can in no sense be considered one of the necessary or usual consequences of such negligence. The sister accepts and pays for the telegram after the fact of negligence. The negligent act has been done, and she pays the fees voluntarily, relying upon the implied warranty that the company has omitted nothing to give the message the value it should have. In one sense it may be said that her act of acceptance stands between the precedent negligence and the payment of the fees. If however this is wrong, and the loss of the value of the fees is a result of which the precedent negligence is the proximate cause, then the case would stand obnoxious to the objections I have above stated against the doctrine of the Texas cases. If her cause

pile, with the minor side inducements to a large or small verdict, which accompany these issues. The cases which allow the measure of value of an article sold to be regulated by public taste, illustrate the fact that hard as the law is, it sometimes takes account of sentiment and feeling. For instance, in Turner v. Mason, 35 Alb. L. J. 463, an artist brought an action for the value of a portrait he had painted for defendant, and the court held that the measure of its value was the estimate the public put upon the artist's work, not simply the value of his time aud labor. This however is an estimate of value and not of damage, but it goes to show that the law can and does take account of taste, feeling and sentiment. The case stands thus then: a wrong done by the company, which occasions mental suffering, with no adequate remedy, unless it be held, when contracting to convey the message to the father with knowledge of its purport, to have contracted with a view to prevent this mental suffering. If such is the construction of its contract, it seems that no violence is done to reason or authority in holding it to accountability for the mental suffering which the breach of its contract has occasioned. The rule in Texas is that when there is a loss of fees and only then the plaintiff can, in an action ex delicto for damages, recover, besides the fees, damages for mental suffering; but only when the company had notice of the purport of the message. Telegraph Co. v. Brown, 39 Alb. L. J. 393. In West v. Telegraph Co., 38 id. 263, in Kansas, the court held, that in an action against a telegraph company, for failing to deliver a message announcing a death, damages cannot be recovered by the plaintiff solely for the mental anguish occasioned by the non-delivery of the message, saying: "When mental suffering is an element of physical pain or is the natural and proximate result of the physical injury, then damages for it may be recovered." Citing City of Salina v. Prosper, 27 Kans. 544. In Wadsworth v. Telegraph Co., 38 Alb, L. J. 87, the court held that mental suffering was an element of damage, in a case where the message announcing the dangerous illness of a brother was negligently delayed, but delivered to a sister who accepted it and paid the fees, and on her arrival at the place of her brother's residence found him dead, there being sufficient time, had the message been delivered promptly, for her to have reached him before his death. It seems to me that this case is unsound if one is to be guided by precedent. Taking the broadest view, that of the Texas court, admitting mental suffering as an element of damage, in an action for negligence, where the plaintiff has a standing in court for loss of fees paid, the case cannot be sustained upon it. The cause of action for the fees paid here is entirely separate and distinct from that for the negligence of the company. These companies in this country owe duties to the public as well as to the person who employs them to transmit a message. When a telegram is presented to a citizen, which comes from a distance, addressed to him, and for which he is called upon to pay fees, there is an implied warranty that the telegram is bona fide, not in the sense that the company vouches for the identity of the person sending it, but that it was sent from the place it purports to come, and that the copy as delivered is a true transcript of the message as received by it, and that there has been no unreasonable delay in its transmission. Where one comes claiming to have done an act, the duty to do which was imposed upon him by law, for the benefit of another, and for which the law allows him to demand compensation from the person interested in advance of the knowledge of the character of the performance of the act, and the person does compensate him, it is a principle of natural justice, that there is an implied warranty that the person paid has done all with reference to the subject-matter which the law requires of him, and that there has been

of action is on the implied warranty, it would fail on further claim for damage than the fees paid, because the implied warranty only extends to exemption from loss or injury resulting from action on the delayed message. It would not extend to the mental suffering for this was in no sense the consequence of the acceptance of or action on the delayed telegram, but wholly of the company's negligence. So the case would have no analogy to those where the company contracts with the sender to confer a special enjoyment. In any point of view it seems that the conclusion of the court in Wadsworth v. Telegraph Co., supra, is unsound. The notion that a cause of action can arise from mental suffering alone is expressly repudiated in Texas. Savelle's Case, 55 Tex. 303, and it seems from Wadsworth v. Telegraph Co., in Tennessee. So I conclude that there is no principle of law which allows damage for mental suffering, in these cases, except where the company, with full knowledge of the purport of the telegram, contracts to transmit intelligence, and wantonly or negligently fails, or delays to do so, whereby mental suffering is occasioned to the person with whom it contracts, and here solely because it may be taken to have contracted with a view to the prevention of this very suffering and so contemplated a response in damages in case of breach on its part. This is as far as any principle regulating the allowance of such damage extends, so far as I am informed. Even this is not entirely satisfactory. It may be wiser to exercise the constructive energy of the common law and allow a cause of action to be based on mental suffering, occasioned by the negligence of these companies, in all instances. Such allowance cannot however be based upon precedent or analogy. An almost overwhelming objection to the "mental suffering" doctrine of the Texas and Tennessee courts, lies, it seems to me, in the large discretion it places in the hands of juries, who without the guide of general rules have to make their verdicts from the circumstances in the midst of exciting prejudices. As an instance of the metaphysical difficulties into which such courts drop under this doctrine, see Telegraph Co. v. Cooper, 38 Alb. L. J. 486, in Texas. To which conclusion a jury, charged in accordance with their decision, would come, let those who are familiar with the average juror consider. I confess I have no sympathy with those who measure their family afflictions by dollars and cents, and air their sufferings before courts and juries for pecuniary

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advantage. To me there seems something of wiser policy in keeping these speculating virtues out of the courts. They come in all the paraphernalia of woe, to excite sympathy and drop tears from their eyes, that they may be transmuted into gold by the alchemy of the jury box. It seems wiser to me to make the com. panies responsible to the State for such neglects; either in the way of penalties to be recovered by the party injured or by indictment, and release them from private responsibility which has to be worked out upon dubious principles, leaving unaffected the right to recover for substantial damage. Under this plan, plain and certain rules would guide a jury to correct conclusions; under the "mental suffering" doctrine, sympathy with the litigants and the desire to mulct a corporation often lead to practical injustice.

MARRIAGE-LOSS OF HUSBAND'S SOCIETY AND SUPPORT-ACTION.

WISCONSIN SUPREME COURT, APRIL 8, 1890.

DUFFIES V. DUFFIES.

One who entices away a husband is not liable in damages to the wife for the loss of his society and support, either by common law or statute, in Michigan.

A'

PPEAL from Superior Court, Milwaukee county.

Van Dyck & Van Dyck, for appellant.
Williams, Friend & Bright, for respondent.

ORTON, J. This action is brought by the plaintiff, as the wife of one Frank W. Duffies, against the defendant, the mother of said Frank, to recover dam. ages by reason of the defendant having wrongfully induced, persuaded and caused the said Frank W. Duffles to refuse further to live and cohabit with the plaintiff, and to support and maintain her, and to support and maintain their child, and maliciously enticed him away from her, intending thereby to deprive her of his society and support, maintenance, aid and assistance. The action was tried, and the plaintiff recovered by the verdict of the jury, $2,000, of which the plaintiff remitted $1,000, and judgment was rendered for the residue thereof. Errors are assigned for admitting irrelevant testimony, refusing to submit certain questions to the jury, to give certain instructions and for denying motion for nonsuit and for a new trial, but they will not be considered any further than some of them may involve the question whether the action itself will lie. The learned counsel of the appellant, before the trial was commenced, objected to the introduction of any evidence under the complaint on the ground that it stated no cause of action, which objection was overruled. On this demurrer, ore tenus, the learned counsel contended that this action would not lie at common law, and that there is no statute allowing it. From the examination of the authorities we have been able to make, and considering the reason thereof, we have concluded that such contention is correct, and that the action cannot be maintained.

The learned counsel of the respondent contends that the action lies (1) at the common law; and (2) by the terms and liberal interpretation of our statutes; and (3) by analogy to similar cases. The learned counsel does not contend that any such action was ever maintained at the common law, but that by the principles of the common law, and in analogy to similar actions at the common law, the right of action existed, and was not maintainable, only on account of the wife's disability to bring the action. But the wife was not

only unable to bring the action to recover damages for the loss of her husband's society, but the damages themselves were the property of the husband, the same as in case of personal injury, or for def amation, even before marriage. Gibson v. Gibson, 43 Wis. 23; Barnes v. Martin, 15 id. 240. How can she be said to have had a right of action to recover damages which she could neither own nor enjoy. More properly the right of action was in the husband, in the interest or on account of his wife. The common law could not recognize a right of action in the wife to sue for the loss of her husband's society, without involving the absurdity that the husband might also sue for such a cause. The wife having no right of property, at common law, in any damages recovered on her account, for any cause, neither could she have any right of action to recover them. This may have been grossly wrong, but such was the theory of the common law, and to make it consistent, the wife had no such right of action. The wife was not only inferior to the husband, but she had no personal identity separate from her husband. It is not proper to say that the common law was inconsistent in denying to the wife the right to bring such an action, and at the same time allowing the husband to sue for the loss of the society of his wife. Her disability in this respect was consistent with all of her other disabilities.

When the learned counsel cites the case of Winsmore v. Greenbank, Willes, 581, decided in the nineteenth year of George the Third, in which the husband sued for enticing away his wife, per quod amisit the comfort and society of his wife, as furnishing the same reason for the wife bringing such an action, he ignores all these common-law disabilities of the wife, which are consistent with each other. Chief Justice Willes admitted that there was no precedent for such an action, but as the action on the case had been invented for similar cases, he claimed that this was only another case with new facts, and as there were "injury and damage," and the violation of a right, and the action ought to lie, it would lie within the reason of other cases. And so the learned counsel argues from Philip v. Squire, Peake, 82, in the thirty-first year of George the Third, in which Lord Kenyon held that the action by the husband was not for the loss of the services of the wife, but of her society.

In Pasley v. Freeman, 3 T. R. 51, the action was for making a false affirmation with intent to defraud. Lord Kenyon held that the action would lie, although a new case, because there was damnum cum injuria. In Ashby v. White, 2 Ld. Raym. 938, decided in 1701, the action was against an officer for refusing to receive the plaintiff's vote. It was a case of prima impressionis, but Chief Justice Holt, against the other judges. held that the action would lie at common law, on the ground that where there is a wrong there should be a remedy. In Chapman v. Pickersgill, 2 Wils. 145, the action was for falsely and maliciously suing out a bankrupt commission, and it was held that the action would lie at common law on the same ground. In Lumley v. Gye, 2 El. & Bl. 216, the action was for enticing away a singer employed to sing in a theater, and in Bowen v. Hall, 6 Q. B. Div. 333, for enticing away a common laborer employed by the plaintiff. These are all new cases predicated upon the same general principles of the common law. The argument is, if these actions can be sustained, and the action of the husband for the loss of his wife's consortium, why may not an action by or on behalf of the wife, for the loss of her husband's society, support and protection be maintained on the same principles? The reason is obvious, and suggested above. The wife had no property in the consortium of her husband that is lost, nor any right to it that has been violated at common law. If the same able judges who were free to invent actions, and to sustain new cases in an old action, and were quick to

see the justice and humanity of all cases, could have
found a right of action of the wife in such a case, we
may believe that old forms and fictions would not
have stood in the way. Her relative position and cou-
ditions as a wife at common law precluded the recog-
nition of any such right of action. Under the civil law
the husband and wife were distinct persons. The wife
had a separate estate, the right to contract debts, and
to bring actions for injuries. Her position was so
nearly equal to that of her husband that her right to
his society was recognized, and she had a remedy for
its loss. But that remedy was confined to the ecclesi-
astical courts, and consisted only in having her hus-
band returned to her. 1 Bl. Com. 442. The wife had
a right of action for defamation, by the civil law, but
it was denied her in the common-law courts, because
she would then have two actions or a double remedy.
-Palmer v. Thorpe, 4 Coke, 19; Byron v. Emes, 12 Mod.
106; 2 Salk. 694. Another reason was that an action
for defamation would not lie without special damages,
and the wife could have no special damages. In look-
ing into the books of the common law, we can find no
such action or right of action of the wife, and they are
both denied on principle as well as want of precedent.
In the genial light of modern times, the true situation
and position of the wife in the marriage relation are
seen more clearly than formerly, and the place as-
signed her by the law and by common consent is much
-higher and more suitable to her intrinsic character,
ability and worth. She is placed on a nearer equality
with her husband in her rights of person, property and
character. Under the just and genial laws of married
women, she has resumed her position of a feme sole, as
nearly as is compatible with natural law. It is not
therefore surprising that so great and gallant, learned
and humane a judge and chancellor as Lord Campbell
should hold in Lynch v. Knight, 9 H. L. Cas. 577, that
the wife had the same right to the consortium of her
husband that he had to hers, and might allege special
damage for its loss, caused by defamation of her char-
acter. The lord chancellor said that it was a case of
first impressions, and rested his opinion upon the
great changes that had taken place in the position and
relations of the wife under modern legislation. The
opinion is by no means positive, and placed the right
on the condition that it might be shown that the
wife's "loss and injury" concurred. But the opinion
is obiter in that case, and off-hand, and can hardly be
accepted as authority. But the remedy of the wife
was of no use or benefit to her, for she had to join her
husband in the suit, and the damages recovered be-
longed exclusively to him. The plaintiff obtained judg-
ment in Queen's Bench in Ireland. It was affirmed in
Exchequer by a divided court, and reversed in the
House of Lords, but on another question. It is how-
ever a decision that no such case has ever been sus-
tained at common law.

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wife to sue for "injury to her property or person," she
could not bring this action for the consortium of her
husband, nor at common law. In many cases, as in
Ashby v. White, supra, it has been held that the action
might be brought, because there should be по
wrong without a remedy," as Chief Justice Holt said
in that case. But we must not forget that to entice
away her husband was no wrong to the wife, and she
had no right to his society, and the damages, if any,
belonged to him at common law. In Van Arnam v.
Ayers, 67 Barb. 544, it was held that the action would
not lie at common law, nor under the statute, "for
injury to her person and character," or her separate
property. In Jaynes v. Jaynes, 39 Hun, 40, it was held
that the action would lie under the statute of "civil
procedure," but not at common law. In Breiman v.
Paasch, 7 Abb. N. C. 249, it was held that the action
would lie, if not under the statute, under the authority
of Lynch v. Knight, supra, since the wife's disability
to sue alone had been removed. In Baker v. Baker, 16
Abb. N. C. 293, the right is predicated upon the wife's
separate property, and the right to sue for injury to
her person and character. In Logan v. Logan, 77 Ind.
559, the action by the wife was for defamation, and she
counted per quod for loss of the society of her husband.
It was held that she might bring the action under the
statute of "injury to her person or character," but it
could not be extended for loss of the society of her
husband. In Calloway v. Laydon, 47 Iowa, 456, an ac-
tion under the liquor law like ours in chapter 127, Laws
of 1872, in which the wife might recover "for injury to
her person, property or means of support, and for all
damages sustained, and for exemplary damages," it
was held that she could not recover for the loss of her
husband's society. And so in Freese v. Tripp, 70 Ill.
503, and in Confrey v. Stark, 73 id. 187, and Mulford v.
Clewell, supra. The recent case of Foot v. Card, 18
Atl. Rep. 1027 (decided by the Supreme Court of Con-
necticut) is sustained by the anthority of Lynch v.
Knight, supra, and on the ground that the wife is in a
condition of perfect equality with her husband, and
"her right is the same as his in kind, degree and
value." It is said that even if the damages go to the
husband, he would hold them as trustee for the wife.
This case would be of greater authority if the expres-
sions of the wife's absolute equality with her husband
were less general, sweeping and unlimited. The still
more recent case of Bennett v. Bennett (N. Y.), 23 N.
E. Rep. 17, holds that the action will lie at common
law and cites Lynch v. Knight, supra, and under the
statutes which allow her to recover for “injury to her
person or character," and give her separate property.
It is held, in the leading opinion, that the wife can sue
alone for all injuries to her person, and the damages
recovered will belong to her.

In Westlake v. Westlake, 34 Ohio St. 621, it was held that the action would not lie at common law, and it was only allowed in Ohio by the statute that 'gave the wife a right of action for all violations of or injury to the wife's "personal rights." Judge Cooley said he could see "no reason why such an action might not exist, when the statute allowed her to sue for personal wrongs." Cooley Torts, 228. "Personal rights" are not rights of person. The latter are physical, and the former are relative and general, and embrace all the rights any person may have, and all the wrougs he may suffer. The court held correctly that the right to the society of her husband was a personal right, under the statute. It was so held also in Clark v. Harlan, 1 Cin. R. 418. It is said in the opinion that the wife had Ho such right at common law as a personal right, and therefore she could not sue, but she may by force of the statute. But it was held in Mulford v. Clewell, 21 Ohio St. 191, that under the statute that allowed the

It will be seen that there is very little conclusive authority on this question by the decisions of the courts in this country or in England. The doctrine may be said to be unsettled. Those courts which hold that the action will lie at common law do so because the statute has placed the wife on an equality with the husband or removed her disabilities. This would seem to imply that the action would not lie at common law, but by statute. Other courts hold that the right of action existed at common law, and would therefore lie as soon as the statute removed the wife's disability to sue alone. The question may be said to be a new one in this court, although the effect of some of our decisions may have a direct bearing upon it. The case of Peterson v. Knoble, 35 Wis. 80, was an action under the liquor law, commonly called the "Graham Law," to recover for injury to the "person, property or means of support" of the wife. The husband was made drunk, and turned his wife out of doors. The question was raised whether injury to her feelings and for the indignity could be recovered in the action. The

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court cites Mulford v. Clewell, supra, as holding that nothing could be recovered, except for actual violence or physical injury to the person or health, not even for her disgrace or loss of society of her husband, and while approving that case, holds that for injury to the feelings, and for the indignity, she may recover, because it is a part of the actual damages in the action, and connected with the injury to her person, and because "exemplary damages" may also be recovered under the statute. This limitation to the actual damages for the physical injury would seem to imply that the loss of her husband's society could not be recovered for under the statute. The cases in Ohio and Illinois, under the same law, hold that damages for the loss of the husband's society cannot be recovered, as we have seen. The case of Dillon v. Linder, 36 Wis. 344, was brought under the same statute (chap. 127. Laws 1872). While it was pending, and before trial, chapter 179, Laws 1874, repealing the above chapter was passed, and the question was, whether by such repeal the action was defeated or abated, or saved by section 33, chapter 119 of the Revised Statutes of 1858, now section 4974 of the Revised Statutes. It was held, Chief Justice Ryan writing the opinion, that the section referred to related only to "new forms of remedy for old rights." and that the statute created the cause of action itself, and that the repeal took away the right of action, and that was not saved by the statute, and was therefore gone. The important and pertinent effect of this decision is that the statute created the cause of action or right of action to recover damages by reason of any person causing, through.drunkenness of the husband, any injury to the wife's "person, property or means of support, and any damages sustained, and exemplary damages." Then it follows that such a cause of action, or right of action, did not exist at common law, but is purely statutory. If theu such damages could not be recovered at common law, much less could a more remote and speculative class of damages, for the loss of the husband's society by such means, be recovered at common law, or without a statute creating such a cause of action or right of action. It follows also, as before said, that the right of action of the wife, in such a case, did not exist at common law. It was not a mere common-law disability to bring the action, The only two statutes now in force in this State allowing the wife to bring an action alone and to have the damages recovered her own separate property, are said chapter 179, Laws 1874 (§ 1560, R. S.), which gives her an action against any person who causes, through the drunkenness of the husband, "injury to her person, property or means of support;" and chapter 99, Laws 1881, which gives her an action for any injury to her person or character." According to common reason and the decided weight of authority, neither of these statutes gives the wife any right of action for the consortium of her husband. The loss of her husband's society is not an injury to her person, property, means of support or character, and such an action cannot be forced, within the terms or spirit of the statutes, by the most strained and liberal construction. Such a right of action does not exist by law, nor can it be inferred from the ameliorated and changed conditions of the wife, and her equality with ber husband, produced by modern legislation in her behalf. Whatever equality of rights with her husband she may have, it is not proper to say that "her right to the society of her husband is the same in kind, degree and value as his right to her society." There are natural and unchangeable conditions of husband and wife that make that right radically unequal and different. The wife is more domestic, and is supposed to have the personal care of the household, and her duties in the domestic economy require her to be more constantly at home, where the husband may nearly always expect to find her, and enjoy her society. She

is purer and better by nature than her husband, and more governed by principle and a sense of duty and right, and she seldom violates her marriage obligations or abandons her home, or denies to her husband the comforts and advantages of her society by any inducement or influence of others, without just cause. Actions against others for enticing her away from her home and her husband's society are not frequent, She is protected from such wrong, not only by her integrity of character, but by greater love for her family, and the comforts and genial influences of home life. With the husband the case is different. He may not be his wife's superior in the sense of the common law, or in any thing, and may be her inferior in many things, but he is charged with the duty of providing for, maintaining and protecting his wife and family. He is engaged, for this purpose, in the business and various employments of the outside world, that must necessarily, more or less, deprive his wife of his society. The exigencies of even his legitimate business may keep him away from her and his home for months or years. He is exposed to the temptatious, enticements and allurements of the world, which easily withdraw him from her society, or cause him to desert or abandon her. Others may entice or induce him to do many things, for business or pleasure, which may deprive his wife of his society. The wife had reason to expect all these things when she entered 'the marriage relation, and her right to his society has all these conditions, and is not the same in "degree and value" as his right to hers. For these reasons, and many others, if actions by the husband for the loss of the society of his wife are not frequent, actions by the wife for the loss of his society would be numberless. This right of action in the wife would be the most fruitful source of litigation of any that can be thought of. The loss of his society need not be permanent, for a cause of action. For a longer or shorter term, if caused by improper inducements or enticements, the right would accrue. There would seem to be very good reason why this right of action should be denied. The justice and advantages of such an action are at least doubtful. For these reasons, this action cannot be sustained on the ground of the wife's equality in right, or of “a remedy for every wrong," or of the coincidence of "injury and damage," or of the constitutional right of a remedy for injury to person, property or character." The right is, at least, so doubtful that the courts may well await a direct act of the Legislature conferring it. There are questions of public policy and expediency involved that may well be considered by the Legislature.

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The court should have sustained the objection of the defendant to any evidence under the complaint, ou the ground that it did not state a cause of action.

The judgment of the Superior Court is reversed and the cause remanded, with directions to dismiss the complaint.

CASSODAY, J. (dissenting.) I am not prepared to give my assent to the opinion of the court filed in this case. There seems to be high authority for saying that at common law an action for damages could be maintained for the alienation and loss of the affection and society of the husband from his wife. Lynch v. Knight, 9 H. L. Cas. 577; Bassett v. Bassett, 20 Ill. App. 543; Foot v. Card (Conn.), 18 Atl. Rep. 1027; Bennett v. Bennett (N. Y.), 23 N. E. Rep. 17; affirming 41 Hun, 640; and Mehrhoff v. Mehrhoff, 26 Fed. Rep. 13. In such action however it was necessary for the husband to join, as it was said, for conformity's sake. Id. So in an action for damages for a tortious injury to the wife, it was held necessary in this State, prior to the recent statute on the subject, for both husband and wife to join in the action. Gibson v. Gibson, 43 Wis. 23; Meese v. City of Fond du Lac, 48 id. 323; Shanahan v. Madi

son, 57 id. 276. But in addition to the rights of prop-
erty and business previously possessed, "chapter 99,
Laws 1881, gave to a married woman, as though she
were sole, the right to maintain an action for any in-
jury to her person or character, and took from the
husband all right to or control over such action, and
all right to or interest in any judgment recovered
therein." Shanahan v. Madison, supra. Prior to that
enactment such action, for personal injury to the wife,
if brought in her own name alone, could only be de-
feated on such ground, by showing the fact of such
marriage in abatement, and then proving the samne.
McLimans v. City of Lancaster, 63 Wis. 596. That ac-
tion was commenced in the name of the wife alone,
some time prior to that statute, but no objection ou
that ground was taken by plea in abatement or other-
wise, until after two trials at the Circuit Court, and
the case had been brought to this court on a second
appeal; and it was held, in effect, that the irregularity
in commencing the suit in the name of the wife alone
was cured by that statute. In so holding, this court
followed Weldom v. Winslow, 13 Q. B. Div. 786, where
Brett, M. R., speaking for the court, said: "For such
a cause of action no action could ever have been
brought by the husband alone without joining his wife
as a plaintiff. * * *The injury to the wife was the
meritorious cause of action, and if she had died before
the commencement of the action, the husband would
not have been entitled to sue. If damages should be
given, they would belong, in the first place, to the wife
alone; and if they should not be reduced to possession
by the husband, and he should die, the damages would
be hers, and would not go to his executors." Mc-
Limans v. City of Lancaster, 63 Wis. 600. In that case
the right of action had been created and given by stat-
ute. In this State it has frequently been held that
compensatory damages include mental suffering, and
that no distinction is to be made between other forms
of mental suffering and that which consists in a sense
of wrong or insult arising from an act really or appar-
ently dictated by a spirit of willful injustice, or by a
deliberate intention to vex, degrade or insult. Craker
v. Railway Co., 36 Wis. 658; Grace v. Dempsey, 75 id.
323, and cases there cited. Within the rulings of this
court in the cases cited, no good reason is perceived
why this action is not maintainable; especially is this
so if such right of action existed in favor of the hus-
band and wife jointly at common law, as indicated in
the authorities cited. I have not had the time to
verify, by careful examination, whether that is so or

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LIA

of a certain mill in Paterson, near to which is a mill
owned by the Ivanhoe Paper Company, in which there
was a large steam boiler, which was so situated that, if
it exploded, the building of the plaintiff would be in-
evitably damaged; that the defendant, the American
Steam Boiler Insurance Company, "represented and
stated" to the Ivanhoe Paper Company that it kept in
its employ skilled engineers who were expert in the
examination and testing of steam boilers, and that in
case the paper company insured in the company of the
defendant it would have said boiler examined and
tested from time to time, and would report the result
of such tests and examinations; and that thereupon
the Ivanhoe Paper Company took a policy from the
defendant, against certain specified damages that
should be occasioned by the explosion or rupture of
said steam boiler. But it is not perceived how the
declarations and representations not expressed can
affect the questions to be decided, for certainly they
have nothing to do in the constitution of the conven-
tional status between the defendant and the Ivanhoe
Paper Mill Company. These statements were all made
antecedently to the contract for insurance, which was
in writing, they are inconsistent with its provisions,
and consequently were annulled by its execution. A
copy of the policy of insurance here referred to was
annexed to the declaration, and is made part of it, in
accordance with the Practice Act. On reference to it,
it appears that so far from the defendant's having un-
dertaken the obligation of making the examinations
and tests described in the before-mentioned represen-
tations, there is simply a stipulation to the effect that
it should have the right to make inspections if it
pleased so to do. The principal clause touching this
subject is as follows, viz.: “ 'Prevention of accidents
by explosion being the primary object of this company,
it is hereby agreed that the inspector of this company
shall, at all reasonable times, have access to said boiler
or boilers, and the machinery connected therewith,
and every and all facilities be offered to said inspector,
when this company shall so desire, for the purpose of
making an examination of said boiler or boilers or ma-
chinery; aud should such inspector, upon said exam-
ination, discover any defect, affecting the safety of
said boiler or boilers or machinery, he shall notify the
assured; or should the assured discover any defect, or
be notified by any person having any interest therein
of any defect or source of danger to said boiler or
boilers or machinery, and upon such defect being
brought to the knowledge of the assured, or of his
agent, the said boiler or boilers or machinery so
affected shall cease to be worked until such defect
shall be corrected or repaired by the assured to the en-
tire satisfaction and approval of the inspector of this
company, and upon a failure so to do this policy shall
become null and void." There is likewise a stipula-
tion that, in case of the cancellation of the policy, the
company might retain thirty per cent of the premium
"for the charges of inspection," and another to the
effect, in its own language, that the policy should be
void "if the load on the safety-valve shall be exceeded
as approved by the inspector of this company, accord-
ing to the inspector's certificate issued to the assured
after each inspection."

VAN WINKLE V. AMERICAN STEAM BOILER INSUR-
ANCE COMPANY.

The defendant having insured a steam boiler which was in a
building adjacent to the mill of the plaintiff, and which
mill had been injured by the bursting of such boiler, and
it appearing that the defendant had co-operated actively
with the owner of the boiler in its management, held, that
the defendant was responsible for such danger, if the
same was occasioned by its want of care and skill in such
transaction.

Eugene Stevenson, for plaintiff.

William Brinkerhoff, for defendant.

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BEASLEY, C. J. This case stands before the court on a demurrer to the declaration. The facts constituting a summary of the plaintiff's cause of action, as presented in this pleading, are these: That he is the owner

It is plain, from these references to this policy, that the defendant was in no wise obligated by its contract to make any inspection whatever of this piece of machinery. It acquired the right to do so by its inspector when it should so desire, but there was nothing in the agreement compelling it to perform such office. And, consequently, if the insurance company had altogether refrained from making an inspection of this boiler, or had refused so to do, it would seem clear that it would have incurred no responsibility either to the assured or to the plaintiff for the disaster that has occurred. In such a situation it would have owed to the former no

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