Campbell et als. v. Trosper.

frequently involve a number of issues and it is a matter of uncertainty what the Chancellor's conclusion on a particular issue of fact is. The real difficulty in most cases is in applying the law to the facts. Equity cases being tried here on the same record as in the court below, the reason for the rule in common law cases does not exist. This court has therefore, uniformly, for a number of years, adhered to the rule that in equity cases judgment will be given here according to the truth of the matter as it shall appear to the court from the whole record, but that where the proof is conflicting, and on the whole case the mind is left in doubt as to the truth, the chancellor's judgment will not be disturbed. Bank v. Stapp, 97 Ky., 432, (30 S. W., 1,000); Stephens v. Dickinson (Ky.) 43 S. W., 212; Marcoffsky v. Franks, Id., 440; May's Adm'r v. Burns (Ky.) 44 S. W., 83; McCampbell v. McCampbell (Ky.) 46 S. W., 18 Woolley's Ex'rs v. Greenwade's Heirs (Ky.) 47 S. W., 335; Bank v. Clark (Ky.) 48 S. W., 1089.

In this case it appears that J. H. Campbell has continued his illicit relations with the woman Burrilla Trosper, and that another child has been born to them since the divorce from his wife. He and Burrilla continued to occupy the land conveyed by the deed, since it was made, substantially as they did before. A part of it was rented out, but the rent corn was delivered at Burrilla's house. J. H. Campbell worked on the land, cultivating crops, planting things, and treating the place as his home. Appellant Joel Campbell lived seven miles off, and seems to have exercised no control over the property; and the social relations of appellant G. M. Campbell with the woman Burilla and J. H. Campbell tend strongly to sustain appellee's contention. The evidence leaves no doubt that both of the appellants knew of the separation of J. H. Campbell from

Campbell et als. v. Trosper.

his wife, and her judgment against him. They certainly knew that the effect of the deed would be to defeat her claim, and, from his intimacy with them, it is hard to escape the conclusion that the deed was made on the part of all three of them for the purpose of defeating her judg ment, under the undisputed evidence as to the manner in which the land has been held and used by J. H. Campbell and Burrilla since the deed was made.

It appears from the record that when the deed was made there was a mortgage on the land, in favor of J. H. Campbell's attorneys in the divorce case, and several others, for something like $450, which was then released. Appellants testify that the money they paid Campbell for the land was used to extinguish this mortgage, and it is insisted for them that they should, in any event, have been substituted to the rights of the mortgagees. But this was not pleaded, and it does not seem proper to give such relief without a pleading asking it, or alleging the facts entitling them to it. Under appellee's prayer for all proper relief, her petition properly setting out all the facts, the Chancellor, on final hearing, correctly adjudged to her such relief as she was entitled to, although part of it was not specifically prayed in the petition; and on the whole case, as the record stood, the judgment of the Chancellor is in accordance with the rights of the parties. Judg. ment affirmed.

Vol. 108-89

Deitzman v. Mullin.

CASE 85-ACTION FOR DAMAGES FOR ALIENATION OF HUSBAND'S AFFECTION-JUNE 1.

Deitzman v. Mullin.

APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION.

JUDGMENT FOR DEFENDANT AND PLAINTIFF APPEALS. REVERSED.

Held: Under Kentucky Statutes, section 2128, empowering a married woman to sue and be sued as a single woman, the wife may maintain an action against one who entices her husband from her and alienates his affections.

A. C. RUCKER FOR APPELLANT. (No brief.)

KOHN, BAIRD & SPINDLE FOR APPELLEE.

1. A married woman has no property or contract right in the consortium of the husband, because if so it would be placed beyond the control of the State. Con. of Ky., sec. 19, 242; Rose v. Rose, 20 Rep., 417; Mitchell v. Violett, 20 Rep., 378.

2. The husband's right in the wife and the wife's right in the husband are not correlative nor analogous. Schuler on Domestic Relations (4th ed.), secs. 44 and 45; 1 Blackstone's Com., 444, 445; 3 Blackstone's Com., 139.

3. Under the common law, the wife has no right of action against third parties for the abduction, enticement of, or criminal conversation with the husband, or for the alienation of his affections, but her sole cause of action lies against the husband. 3 Blackstone's Commentaries, 143.

4. In law the absence of a remedy is the denial of a right. Phillips v. Horsey, 84 Ky., 428.

5. The better considered modern cases, on principle and considerations of public policy, deny the existence of a right of action in a wife against a third person for the alienation of the husband's affections. Duffries v. Duffries, 76 Wis., 374; 20 Am. State Rep., 79; 45 N. W. R., 520; Doe v. Roe, 82 Ma., 503; 17 Am. St. Rep., 499; Van Arnan v. Ayers, 67 Barb. N. Y., 544; Mulford v. Clewell, 21 Oh. St., 191; Logan v. Logan, 77 Ind., 558; 3 Blackstone's Com., 143; Bennet v. Sane, dissenting opinion, N. Y., 23; N. E. R., 17.

6. In this State no cause of action will lie against a third person, even for a malicious enticement of a party to a contract to

Deitzman v. Mullin.

break it. Being a free agent the action is confined to the parties. Chambers v. Baldwin, 91 Ky., 122; Bourlier v. Macauley, 91 Ky., 135.

7. The Weissinger Act of 1894 does not create a separate estate in the wife with reference to her person or personal rights as distinguished from property rights. As to these she is to-day left to the unwritten law. The husband must join her in such actions and necessarily has an interest in the result. Ky. Stats., 2128; Civil Code, sec. 34.

8. Even with reference to property rights she is not entirely relieved of the disabilities of coverture. Kalfus v. Kalfus, 92 Ky., 542; Leahy v. Leahy, 97 Ky., 59; Anderson v. Anderson, 11 Bush, 327.

OPINION OF THE COURT BY JUDGE PAYNTER-REVERSING.

The question presented here is, can a married woman maintain an action against one who entices her husband from her, and alienates his affections? At common law marriage is considered in no other light than a civil contract, and the holiness of the matrimonial state is left entirely to the ecclesiastical law. The temporal courts consider unlawful marriage as a civil inconvenience. To punish or to annul unscriptural marriages is the province of the spiritual courts, which et pro salute animae. 1 Bl. Comm., 432. The common law recognizes the right of either husband or wife to maintain a suit for the restitution of conjugal rights when either is guilty of injury of subtraction without sufficient reason, in which case the ecclesiastical courts compel them to come together. 3 Bl. Comm., 94. At common law the husband and wife are treated as one person. Marriage operates as a suspension, in most respects, of the legal existence of the latter. All the disabilities of married women spring from the supposed unity of husband and wife. At common law the right of the wife to the consortium of her husband exists. In the ecclesiastical jurisdiction, which is exer

Deitzman v. Mullin.

cised concurrently with that of the common law, the rights of the wife to the consortium of the husband are recognized and enforced. While the court did not give her damages for the loss

of the consortium of the husband,

but restored to her the thing itself, this was a distinct recognition of the rights of the wife by the ecclesiastical law of England, which was founded upon the principles of the civil law. 1 Bl. Comm., 442; 3 Bl. Comm., 139, 140. If the dominion which the common law gave the husband over the property and personal rights of the wife has been taken away from him and conferred upon her, and remedies conformable with the spirit of the civil law have been given to the wife for the redress of injuries to her person, property and personal rights, an action in her own name for the loss of the consortium of her husband, against one who wrongfully deprived her of it, may be maintained, unless the consortium of her husband is not one of her personal rights.

It is not questioned that the law gives the husband the right to maintain an action against one who deprives him of the consortium of his wife. The law gives the wife the right to her husband's support, society, and affection. If the right is invaded, a flagrant wrong has been committed. It is the boast of the common law that there is no right without a remedy. It would be a reproach to the law if there was no remedy for a wrong like this. There is a maxim that "reason is the life of the law." Certainly it would be against reason to give the husband the right of action for an injury, but deny the same to the wife for suffering a like one. The reason which gives the husband an action against one who deprives him of the society and affection of his wife supports a rule which would give the wife the same remedy. Some courts hold