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*CHAPTER VIII.

INJURIES TO FAMILY RIGHTS.

Family Rights. In a previous chapter it has been said that the common law, while it took notice of rights pertaining to certain relations of life, did not recognize the family, as such, as constituting a legal entity, and as having rights as an association of persons. The reasons for this are to be found in the barbarous condition of society when the common law was forming; a condition when physical force counted for very much more than now, when serfdom and villenage very largely prevailed, and when wife and children were to husband and father rather servants and dependents than equals, and were expected to look to him for protection against wrongs at the hands of others. The husband and father, in a primitive state of society, is naturally regarded as the representative of the family, and rights in which all are concerned may be expected to find their best protection through him. Social changes have been going on more rapidly in modern times than the modification of legal principles, and the common law of family rights is, in most particulars, not greatly different now from what it was when it tolerated a man in inflicting personal chastisement on his wife or his marriageable daughter.

Wrongs to the Husband. While thus the husband and father was recognized as the head and representative of the family, it was impossible, in some cases, that the ordinary remedies for civil injuries should be allowed as between the various members. How, for instance, was the husband to have civil redress for any wrong suffered at the hands of the wife? He could not have it by way of award of damages, for the wife's property, so far as it was personal, and the usufruct and enjoyment of it, so [*223] far as it *was real, was transferred to the husband by the marriage. For gross breaches of the marriage covenant

■ Ante, p. 44.

the spiritual courts might decree a separation, and the supreme legislative authority might dissolve the marriage relation; but other civil redress the husband could not have. He must protect his rights as husband by physical restraint or correction.

The right of the husband to inflict personal chastisement upon the wife has probably entirely passed away. There are, indeed, some recognitions of it within a few years last past, but the spirit of the age rejects it as a reminiscence of barbarism.' It cannot be affirmed that an action can be sustained by the wife for an assault upon her by the husband, but such an assault would be taken notice of by the criminal law as an offense against the State. And from any forcible restraint put upon the actions of the wife, and which would constitute an imprisonment, the wife might have relief on habeas corpus.

If we direct attention to the remedies which, at the common law, the husband might have against third persons, for a violation of his rights as husband, we find them all grounded upon or permeated with the ideas which mark their origin in a rough and uncultivated society.

1. He might have redress against third persons for an injury suffered by him in respect to the property which the wife had brought him. But as such redress would rest upon principles which are common to other cases, it calls for no special comment here.

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*2. He might have a special action on the case against one who should seduce his wife or entice her away from

1 Peannan. Peannan, 1 Swab. & Trist. 609; People v. Winters, 2 Park. C. R. 10; Commonwealth v. McAfee, 108 Mass. 458.

2 In State v. Rhodes, 1 Phil. (N. C.) 453, it is said that, although the laws of the State do not recognize the right of the husband to whip his wife, yet that the courts will not interfere to punish him for moderate correction of her, even though there had been no provocation. One is naturally a little curious to know what can be moderate correction where there has been no fault. In Poor v. Poor, 8 N. H. 307, 313, RICHARDSON, Ch.J., says:

"Whatever the old books may say upon the subject, there never was, in my opinion, in the relation between husband and wife, when rightly understood, anything that gave to the husband the right to reduce a refractory wife to obedience." In the same case, however, the judge says that when the wife "is ill treated on account of her own misconduct, her remedy is in a reform of her manners, unless the return from the husband is wholly unjustified by the provocation, and quite out of proportion to the offense." P. 316.

2

him.' The ground of such an action is the infliction upon the husband of some one or more of the following injuries: 1. Dishonor of the marriage bed. 2. Loss of the wife's affections. 3. Loss of the comfort of the wife's society. 4. Total loss of the wife's services where she absconds from the husband, and probable diminished value of services where she does not. 5. The mortification and sense of shame that most usually accompany this most serious of domestic wrongs. The extent of the injury in any case must depend in great measure upon the previous relations of the parties. If these were cordial and affectionate, and such as are expected to exist when a suitable marriage has been formed under a proper sense of the obligations and responsibilities that belong to it, the wrong of the seducer who succeeds in withdrawing the wife's affections from her husband, and induces her

Winsmore v. Greenbank, Willes, 577; Weedon v. Timbrell, 5 T. R. 357; Rabe. Hanna, 5 Ohio, 530; Preston . Bowers, 13 Ohio, (N. 8.) 1; Hadley. Heywood, 121 Mass. 236; Barbee. Armstead, 10 Ired. 530; Crose. Rutledge, 81 Ill. 266; Conway. Nicol, 34 Iowa, 533. The fact that the defilement was forcible, and a crime does not bar the action. Egbert v. Greenwalt, 44 Mich. 245. Nor does the wife's consent. Wales . Miner, 89 Ind. 118. But it may reduce damages. Ferguson v. Smethers, 70 Ind. 519. Recovery may be had for loss of consortium, implied in crim. con., whether the intercourse is with or against her will and although no loss of service results. Bigaouette. Paulet, 134 Mass. 123. No recovery can be had by the husband for loss of reputation and honor of his children. Ferguson v. Smethers, 70 Ind. 519. The action may be brought after a divorce from the wife. Wood . Matthews, 47 Ia. 409; Wales. Miner, 87 Ind. 118. Where the gist of the action is crim. con. no recovery can be had for loss of service, &c. unless the crim. con. is proved. Wood v. Matthews, 47 Ia,409.

*In Heermance v. James, 47 Barb. 120, an action was sustained by a husband against one who was alleged to have poisoned and prejudiced the mind of his wife against him, alienated her affections, counselled and aided her to commence proceedings for divorce, whereby she refused to recognize or receive him as her husband, though she did not abandon him. The judge says her remaining with him under the circumstances "would rather add the provocation of insult to the keenness of suffering. It would continue before him a present, living, irritating, aggravating, if not consuming, source of grief, which even her absence might in a measure relieve." So where a divorce is procured though for the husband's fault, if without defendant's interference none would have been sought. Modisett v. McPike, 74 Mo. 636. One who secretly sold laudanum to a wife, which she used as a beverage, whereby her health was greatly impaired, was held liable to the husband as being guilty of assisting her in the violation of her duty as wife. Hoard v. Peck, 56 Barb. 202.

to live with him a life of shame, it is impossible adequately to measure. If, on the other hand, the husband was a libertine, and has brought shame upon his family by his own notorious misconduct, and if the wife, after the destruction of her affection by his own abuse and misconduct, has finally surrendered her own honor, it is difficult to understand what claim he can have to legal consideration. And between these extreme cases there may be numerous others differing so widely in their facts that, while

it may be wise to give a right of action in all, yet the [*225] measure *of redress must be left largely to the discretion

of the proper legal tribunal, which shall be at liberty to award much or little, according as they find that much or little has been lost by the complaining party. And even though the husband may himself have been chargeable with no wrong in his marital relations, yet if the wife's affections were withdrawn from him before the defendant is chargeable with interference, the fact is important as bearing upon the question of damages. The action for seducing the wife away from the husband is by no means confined to the case of improper and adulterous relations; but it extends to all cases of wrongful interference in the family affairs of others whereby the wife is induced to leave the hus band, or to so conduct herself that the comfort of the married life is destroyed. If, however, the interference is by the parents of the wife, on an assumption that the wife is ill treated to an extent that justifies her in withdrawing from her husband's so

1 The bad character of the husband will not mitigate damages, unless he be guilty of unchastity or other wrong to the wife herself. Norton v. Warner, 9 Conn. 172.

2 The wife's letters or statements may be proved to show the previous state of their relations, and of her feelings toward her husband. Willis v. Bernard, 8 Bing. 376; Gilchrist v. Bale, 8 Watts, 355; Palmer v. Crook, 7 Gray, 418; Holtz v. Dick, 42 Ohio St. 23.

See, White v. Ross, 47 Mich. 172. In Hadley v. Heywood, 121 Mass. 236, 239, it is said that "any unhappy relations existing between the plaintiff and his wife, not caused by the conduct of the defendant, may

affect the question of damages, and were properly submitted to the jury; but they were in no sense a justification or palliation of the defendant's conduct. They are not allowed to affect the damages because the acts of the defendant are less reprehensible, but because the conduct of the husband is such that the injury which such acts occasion is less than otherwise it might have been." One who receives a wife to his home who was treated with cruelty by her husband, cannot recover from the husband for her support if one of his motives in receiving her was to facilitate adul terous intercourse. Almy v. Wilcox, 110 Mass. 443.

ciety and control, it may reasonably be presumed that they have acted with commendable motives, and a clear case of want of justification may be justly required to be shown before they should be held responsible. One who merely harbors a wife who, without his consent, has left her husband, and thereby encourages her in withholding from him the performance of marital duties, will be liable for so doing if she left without justification, but not otherwise.'

*Wrongs to the Wife. For an injury to the wife, either [*226] intentionally or negligently caused, which deprives her of the ability to perform services, or lessens that ability, the husband may maintain an action for the loss of service, and also for any incidental loss or damage, such as moneys expended in care and medical treatment, and the like. But if the injury resulted in her death, this cannot, at the common law, be taken into account, either as the ground of action or as an aggravation of