« ForrigeFortsett »
tain this action in her own name, without, cannot be made to respond in damages. joining her husband.
These principles have been enforced uniformIn the case of Flandermeyer V. Cooper, ly in labor strikes, and many cases decided 85 Ohio St. 327, 98 N. E. 102, 40 L. R. A. in recent years by the Supreme Court of (N. S.) 360, Ann. Cas. 1913A, 983, this court the United States were quoted by this court decided that a wife might maintain an ac- with approval in the case of La France Election against a person who furnishes mor-trical Construction & Supply Co. v. Interphine to her husband, he being addicted to national Brotherhood of Electrical Workers, the morphine habit, and as a result of drugs 108 Ohio St. 61, 140 N. E. 899. being so furnished the husband becomes im The leading case on that subject is Truax paired in mind, rendering it necessary to v. Raich, 239 U. S. 33, 36 Sup. Ct. 7, 60 confine him in an insane asylum. The re- L. Ed. 131, L. R. A. 1916D, 545, Ann. Cas. covery was placed upon the ground of loss 1917B, 283, and more recent authorities are of consortium, and the first paragraph of American Steel Foundries v. Tri-City Centhe syllabus is as follows:
tral Trades Council, 257 U. S. 184, 42 Sup. “Husband and wife are entitled to the affec- Ct. 72, 66 L. Ed. 189, 27 A. L. R. 360; Hitchtion, society, co-operation and aid of each oth-man Coal & Coke Co. v. Mitchell, 245 U. S. er in every conjugal relation, and either may 229, 38 Sup. Ct. 65, 62 L. Ed. 260, L. R. A. maintain an action for damages against any one 1918C, 497, Ann. Cas. 1918B, 461; Duplex who wrongfully and maliciously interferes with Printing Press Co. v. Deering, 254 U. S. 443, the marital relationship, and thereby deprives 41 Sup. Ct. 172, 65 L. Ed. 349, 16 A. L. R. 196. one of the society, affection, and consortium of
Surely the rights of an employer to the the other."
fruits of his contract with his employés are Much is found in the opinion of Judge no more sacred than the rights of a wife to Donahue in that case to show that these the consortium and support of her lawful
husband. rights are not mere personal rights, and the mere fact that a recovery is permitted suffi
An unbroken line of authorities establish ciently shows that they are recognized as
the proposition that equity has jurisdiction property rights.
in a proper case to restrain trespass. JurisThe cases are quite numerous in Ohio ard" diction in this class of cases is ordinarily elsewhere which recognize an action for dam- confined to those cases where, from the naages for alienation of the husband's affec- ture of the property affected, or because of tions. Surely no further argument is needed the frequent repetition of the trespass, the to show that an action for damages lies in injury sustained is not susceptible of remedithe instant case, and it is not claimed that al damages. This principle has peculiar the small judgment for damages is errone analogy to the instant case.
Much was said in argument by counsel It is, of course, conceded that it is not for Miss Snedaker to the effect that this is every case where an action for damages will a mere personal right belonging to the wife. lie which may be made the subject-matter | Even so, many cases have been decided to of injunction. It is only those cases where the effect that a mere personal right is withdamages are an inadequate remedy. It is in the protection of a court of equity by intrue that, excepting one or two cases, the junction, and I can see no reason why the courts have not dealt with this identical courts might not properly give relief in a proposition, and it is therefore a novel prop- case involving a breach of the marriage conosition which is presented to this court for tract, even though it should be placed solely determination. On the other hand, I am upon the personal right. of the opinion that the principle involved in Before entering upon a discussion of the this case is exactly identical with that nu- jurisdiction of equity over the infringement merous class of cases where equity has not of personal rights, it should be stated that hesitated to exercise its jurisdiction to pro- there is a clear legal right and a property tect a contract right against undue influence right, which, by reason of the insolvency of by persons not parties thereto. A contract the defendant in this case, renders a suit right has uniformly been held to be a prop- for damages wholly inadequate as a remedy. erty right, and it has been further held that we have reached the point in Ohio where inducing a breach of such a contract is an there is one divorce for every five marriages, actionable tort. While injunction does not and it cannot longer be claimed that the statlie in all such cases, it is very generally held utes relating to marriage and divorce furthat an injunction will lie to restrain third nish that "ample and adequate" remedy persons from inducing the breach of a law- which the majority opinion of the court in ful contract by one of the parties thereto, this case claims. If, as seems to be feared when it will result in irreparable injury. by the majority, the trial court will have This has been held, regardless and irrespec- some difficulty in enforcing the order entered tive of whether the defendant is insolvent, in this case, that difficulty need give this but the cases are quite uniform in holding court no immediate concern. I anticipate, that injunction will lie when the defendant however, that the defendant would not light
(146 N.E.) ly disobey the injunction, if it is permitted has in this case mistaken her remedy. The to stand. The commercial interests of the failure of Miss Snedaker to procure a bill state of Ohio should not be the only concern of exceptions and to reverse the adjudication of the courts of the state. All property of fact, and her attempt only to have this rights and interests, even though growing out court declare a technical rule of law that the of the marriage relation, are entitled to the finding of fact does not support the judgment care and consideration of our courts quite of law which has been entered, affords no as much as those other interests growing out relief to her character. It cannot be lightly of commercialism.
assumed that she seeks only vindication at In its last analysis, this controversy turns the hands of this court. It seems quitē conupon the simple inquiry whether there is clusive, on the contrary, that her real puran adequate remedy at law. It is stated in pose is to be relieved from the inhibition of the majority opinion that our statutes make associating with plaintiff's husband. "ample and adequate provision.” It is not The action at law having been determined quite clear which Code sections are referred against defendant and a judgment entered to. If the court refer to the divorce and thereon, the logical position of the defendant alimony statutes, it may be answered that a in this case, and therefore the logical posidivorce would only facilitate the relations tion of the majority of this court, is that she between the husband and the defendant in is entitled to continue her course unrethis case, inasmuch as the petition recites, strained and unhindered, and that she is and the decree of the court finding the same only subject to further and repeated suits to be true establishes, that the wife, on dis- for damages, and to suffer repeated judgcovering her husband's state of mind, “tried, ments which she will be unable to pay. is still trying, and will continue to try to Having so far discussed the legal quesreason with him, and to induce him to have tions involved as being based upon property nothing more to do with said defendant, and rights, I do not wish to be understood as has forbade the said defendant to have any conceding that equitable jurisdiction will lie thing to do with her said husband, but the only to protect property rights. In a great defendant has informed plaintiff that she number of cases American courts have exerwill not desist from having to do with plain- cised the extraordinary writ of injunction to tiff's said husband.” Instead of this section protect purely personal rights. Without affording a remedy for the wife, it merely quoting, or even citing, the long list of cases affords an avenue of satisfaction to the de- in which this principle has been declared, it fendant. If the court refers to the alimony is sufficient to say that the cases relate to sections, it may be answered that alimony is the education and custody of children, privnever a satisfactory and adequate substitute acy, and reputation, the publication or ex. for support and consortium. If the majority hibition of photographs, the publication of refer to those statutes which declare non- private correspondence, the security of the support of children to be a criminal offense, person, the protection of health and comfort, it may be answered that it is of no avail and many other phases of purely personal to the wife and infant children of this recre- right. The case of Ex parte Warfield, 40 ant husband that he might be placed in jail, Tex. Cr. R. 413, 50 S. W. 933, 76 Am. St. or even in the penitentiary, because of his Rep. 724, decided by the Court of Criminal failure to furnish a proper support. It may Appeals of Texas, is quite similar in its be further answered that those statutes fur- facts to the case at bar. It was an action nish no relief to the wife, because nonsup for the writ of habeas corpus to secure the port of the wife, unless she is in a pregnant release of Warfield, who had been sent to condition, is not punishable as a criminal jail for contempt for violating an injuncoffense.
tion order very similar to the order in the As previously stated, all this portion of case at bar. The injunction order prohibthe discussion is entirely beside the question. ited Warfield from continuing his attentions This is not an action to compel the husband to the wife of one Morris. The court did to discharge his marital duties, but, on the not treat the injunction order as a finality, contrary, an action to compel the defendant but discussed the matter from the standpoint to desist from her interference, and to en- that the injunction order would have been join her from continuing to induce the hus- a nullity, unless the court making the order band to breach the marriage contract.
had equitable jurisdiction to make it. In It is claimed in argument that this error discussing the matter, the court stated that proceeding is prosecuted by Miss Snedaker the marriage contract gave rise to property to remove from her the alleged unjust stig- rights, but further stated that, even though ma of the judgment of the trial court. The the right should be considered a personal one, answer to that proposition is that the stigma equitable process might be invoked. upon her character arises out of the finding In the case of Stark v. Hamilton, 149 Ga. of facts against her by the trial court, and 227, 99 S. E. 861, 5 A. L. R. 1041, the court her reputation will suffer none the less by held that a father might obtain an injuncreason of the majority of this court finding tion to restrain the attempts of a person to as a technical legal proposition that the wife | debauch, his minor child, and to induce her
to abandon her parental abode and live in these are the cases relating to the security of a state of adultery. In concluding the opin- the person and the protection of health and ion, the court, all justices concurring, made physical comfort. While in many of these casthe following pronouncement:
es the jurisdiction is nominally based on an al
leged property right, it is plain that the ob"It is difficult to understand why injunctive servance of the rule that equity will be limited protection of a mere property right should be to rights of property is little more than nomiplaced above similar protection from the con-nal. In all this class of cases equity does continual humiliation of the father and the reputa-cern itself about personal rights as the real tion of the family. In some instances the for- subject of consideration." 37 L. R. A. 787; mer may be adequately compensated in damag- 14 A. L. R. 286–295. es, but the latter is irreparable; for no mere money consideration could restore the good By statute in the state of Ohio, husband name and reputation of the family, or palliate and wife contract toward each other obligathe humiliation of the father for the continual tions of mutual respect, fidelity, and support, debauching of his daughter."
and the busband must support himself, his In fairness to the majority of this court wife, and his minor children out of his propand to counsel for Miss Snedaker, it must erty or by his labor, and if he is unable to do be stated that they do not contend that Miss so the wife must assist him, so far as she is Snedaker has a legal right to alienate the
able. affections of Mr. King, or to solicit his con
It is not to be denied but that the wife has tinued attentions to her, or to impose her certain inalienable rights growing out of the attentions upon him, but the contention is marriage relation, which must be viewed in that the only recourse of the wife against a somewhat broader aspect than that of a the vampire is a judgment for damages, mere civil contract, it being a status, and which she is unable and unwilling to pay, may be defined as a union of one man and and that the vampire is immune from equita- one woman for life, to the exclusion of all ble process, because the statutes give the others. wife certain legal recourse against the hus
It has long been the law of this state that band, which the majority of this court deems the wife has a right of action for damages ample and adequate.
against those who alienate the affections of
her husband, or deprive her of the right of DAY, J. (dissenting). Finding myself un- consortium or his support, and even, though able to concur in the judgment of reversal the husband be a willing party to such dep reached by the majority, it seems fitting that rivation or alienation, yet the action will I should give my own conclusions and the
lie. Flandermeyer v. Cooper, 85 Ohio St. authorities relied upon to support the same. 327, 98 N. E. 102, 40 L. R. A. (N. S.) 360, Ann
This record is purposely made by counsel Cas. 1913A, 983; Westlake v. Westlake, 34 to raise the question whether, when the per- Ohio St. 621, 32 Am. Rep. 397. sonal and property rights of the wife in the
In the latter case the court, speaking by marriage relationship to support, consortium, Gilmore, C. J., on page 633, says: and the right to win and hold the affections "Is the right of the wife to the consortium of her husband are invaded by the willful of the husband one of her personal rights? It and malicious acts of another, and it being it is, then the statute makes the right of action, conceded that an action at law for damages growing out of an injury to the right, the sepis inadequate, may equity enjoin the further arate property of the wife, for which the Code interference; in other words, how far shall gives her a right to sue in her own name.
When the agreement to marry is enthe jurisdiction of a court of equity be used tered into, but before its consummation, each to protect purely personal rights, as well as has the same interest in it, and either may sue property rights, or those rights that border for a breach of it by the other. In this state, closely upon property rights, yet are really neither the husband nor wife unconditionally of a personal character? The question, then surrenders their personal rights by consumis entirely one of jurisdiction.
mating the contract of marriage. On the conFormerly equity jurisdiction extended only trary, each acquires a personal, as well as legal, to the protection of property rights, yet of right to the conjugal society of the other, for
the loss of which either may sue separately." late years a tendency has developed to extend the jurisdiction to include personal Donahue, J., in Flandermeyer v. Cooper, rights, at least to some extent.
supra, says, at page 340 (98 N. E. 105): “While it is a commonly accepted theory that "Consortium is defined to be the conjugal fel. their jurisdiction must rest upon rights of prop- lowship of husband and wife, and the right of erty, there are at least many exceptions to the each to the company, co-operation and aid of rule; among them, cases of contract, trust, or the other in every conjugal relation. Bigaoubreach of confidence relating to personal rights, ette v. Paulet, 134 Mass. 123. cases respecting the education and custody of "This right is invaded whenever a third perchildren, and cases relating to the right of son, through machination, enticement, seduction, privacy and reputation, such as those restrain- or other wrongful, intentional, and malicious ining the publication or exhibition of photographs terference with the marriage relation, deprives or other representations of the person, and the the husband or wife of the consortium of the publication of private letters. In addition to other."
(146 N.E.) When damages may be recovered at law, right in the services of his minor daughter, for the invasions of this right, we see no rea- but that he had a further right to have and son why equity may not enjoin, when the to keep her within his home, and not to be legal remedy fails, and we must accept as interfered with by others who might prevent conceded in this case that the money action him from reforming his minor daughter and for damages is inadequate, owing to the recovering her good name, and leading her financial irresponsibility of the defendant be into the paths of rectitude. Ex parte Warlow.
field is cited with approval in this case. The jurisdiction of a court of equity to Counsel for plaintiff cite the case of Hoprotect marital rights by injunction has decker v. Stricker (Sup.) 39 N. Y. Supp. 515. heretofore been recognized. In Ex parte War. The same does not, however, apply, for the field, 40 Tex, Cr. R. 413, 50 S. W. 933, 76 reason that in that case the plaintiff was not Am. St. Rep. 724, the right was recognized then being deprived of any support or conin an action denying babeas corpus to one sortium, and the purely personal right of who was imprisoned in jail upon a contempt some other woman using her name and thus charge for violating an order restraining the scandalizing and injuring the plaintiff was defendant from writing to, speaking to, or not deemed sufficient for the jurisdiction of talking with, the plaintiff's wife, whose at the court of equity; "there being no allegafections he had already partially alienated tion that plaintiff still lives with him, or that from her husband.
her cohabitation with him was discontinued It is true that the case arose on habeas for any cause attributable to defendant," corpus, and hence should not be regarded as which fact sufficiently distinguishes Hodeckcontrolling, but the principle of the power er v. Stricker, supra, from the case at bar. of equity to enjoin those who interfere with Hall v. Smith, 80 Misc. Rep. 85, 140 N. Y. the marriage relation is clearly recognized. Supp. 796, was an action brought by the
In discussing this case, Dean Pound, in 29 plaintiff, the wife, against the defendant, a Harvard Law Review, p. 674, says:
woman, who was charged with having en"If the order had been appealed from, there ticed away, or alienated from the plaintiff, might have been a serious question as to the the love and affection of her husband, whereexpediency of exercising the jurisdiction. The by the plaintiff had been deprived of the chancellor would have to consider whether he society of her husband ever since the time could reasonably expect to accomplish anything when he first met the defendant. Finding by such an injunction; to consider whether a that it is the settled law that the wife may situation wbere the defendant was in jail be- maintain a suit for alienation of the affeccause he persisted in seeing her would not be tions of her husband and consequent loss of likely to fan the wife's erring affection for defendant, and to consider that he could not keep consortium, the court says, at page 87 (140 the wife away from the defendant, even if he N. Y. Supp. 798) : could keep the defendant away from the wife.
"The motion which has been made in this But these considerations are not relevant to the action requires the determination of the quesquestion of jurisdiction. *
tion whether in such an action an injunction or“Two circumstances, however, detract some- der may and should be made to restrain the what from the weight of Ex parte Warfield as
defendant pendente lite from the continuance an authority. There was a statute in Texas of those acts which lie at the foundation of the which the courts of that state construe as give cause of action. While the question is most uning a wider power of granting injunctions than usual, in respect of the power of the court to that possessed by courts under the general equi- grant such relief, I bave no doubt whatever that ty doctrine. Also, it might be urged that at | in a proper case the right to grant such an incommon law the husband has a legal right to junction resides in the court of equity, and that the services of the wife, which is to be regard- it is not unduly extending the jurisdiction or ed as a property right, and hence that equitable cognizance of the court to restrain the impendrelief may be invoked to secure that right, and ing, threatened, or continued commission of may be employed incidentally to secure the more such acts as are violative of the rights of a significant interests of a purely personal na plaintiff in a suit of this character.” ture. Thus the case could be brought witbin the analogy of Gee v. Pritchard [2 Swanst. 402). But it is significant that the property not more full, as we are denied anything save
We regret that the record in this case is right of the husband in the wife's services. now thoroughly moribund for all substantial the amended petition, the answer, which is purposes, should acquire a temporary vitality a general denial, and the journal entry, to enable the courts to secure interests of per- / which finds that “the allegations of the petisonality which they hesitate to protect avowedly |tion and each of them are true," and that as such."
the plaintiff is entitled to the relief prayed
for. In Stark v. Hamilton, 149 Ga. 227, 99 S. The averments of the amended petition are E. 861, 5 A. L. R. 1041, a father secured an very broad, charging the defendant below for injunction against those who were keeping a period of over five years of wickedly, purhis minor daughter in prostitution; the in- posely, and maliciously intending to win junction being grounded, not only upon the from plaintiff the affections of her husband, grounds that the father had the property his companionship, support, love, and to ap
propriate the same to herself, and that the While the marriage relation should be kept defendant, unless restrained by an order of out of court, rather than to be allowed to go court, in order to prevent the plaintiff from into court to adjust its wrongs and grievregaining the love, esteem, affection, co-opera- ances, fancied or otherwise, yet I cannot say tion, aid, and support, and conjugal relation that, when all other means have failed, a of her husband, the defendant will wickedly, court of equity has no power in the premises. maliciously, and purposely continue to do and A good statement of equitable principles perform each and all of the matters and applicable to the present situation is found things complained of, by reason of which the in 4 Pomeroy's Equity Jurisprudence, section plaintiff will be prevented from regaining the 1338: love, esteem, affection, support, and conjugal
"In determining whether an injunction will relation of her said husband. There is an be issued to protect any right of property, to averment of the insolvency of the defendant enforce any obligation, or to prevent any and the inadequacy of any legal remedy. wrong, there is one fundamental principle of
While these averments of the amended the utmost importance, which furnishes the anpetition are denied by answer, there is no
swer to any questions--the solution to any diftestimony in the record, and we are informed both affirmative and negative, and the afirma
ficulties which may arise. This principle is by counsel, that no trial was in fact had, but tive aspect of it should never be lost sight of, that a waiver of any damages over the sum
any more than the negative side. The general of $5 was made by the plaintiff, and the de principle may be stated as follows: Wherever fendant below was enjoined as heretofore set a right exists or is created by contract, by the forth.
ownership of property or otherwise, cognizable We are therefore denied any opportunity by law, a violation of that right will be proto know what a full hearing would have de hibited, unless there are other considerations of veloped, but must reach our conclusion sim- policy or expediency which forbid a resort of ply upon the single question presented, to wit: of equity extends, therefore, through the whole
this prohibitive remedy. The restraining power Has a court of equity jurisdiction to enjoin range of rights and duties which are recognized such an invasion of the personal and prop by the law, and would be applied to every caso erty rights of the plaintiff below when no of intended violation, were it not for certain adequate remedy at law exists?
reasons of crpediency and policy which conI think, technically, the jurisdiction ex
trol and limit its exercise. This jurisdiction of ists, but that the expediency of granting such equity to prevent the commission of wrong is, relief and its enforcement are serious questions of expediency and of convenience, which
however, modified and restricted by considerations for the trial judge, sitting as a chancel confine its application to those cases in which lor, to determine in the first instance. We the legal remedy is not full and adequate. simply sit as a reviewing court to determine Equity will not interfere to restrain the breach the power of a court of equity in the prem- of a contract, or the commission of a tort, or ises.
the violation of any right, when the legal remIt is unfortunately true that the law can-edy of compensatory damages would be comnot produce nor make happy marriages by plete and adequate. The incompleteness and its order and decree, and the ability of a which, under the settled doctrine, determines
inadequacy of the legal remedy is the criterion court of equity to compel obedience by the the right to the equitable remedy of injunchusband of his marital duties toward his tion.” wife, by restraining his paramour from seducing him from his wife, is extending such Applying this doctrine to the present inpower a great ways; the law already giving stance, we are confronted with the absolute some remedy, even though the same may not finding of the courts below that the plainalways be fully adequate.
tiff in error is financially irresponsible; hence For reasons of expediency and public pol- the inadequacy of the legal remedy. icy, the chancellor might well refuse the as I am of opinion that the injunction granted sistance of a court of equity, as the con- in the present instance was far broader than sortium, affection, and support of a husband necessary, and that, as far as the injunction that must be vouchsafed to the wife by an should go, would be to enjoin the plaintiff in injunction restraining other women from en error from visiting or associating with deticing him from his wife is of such doubtful fendant in error's husband, and from doing value and character that the action of a any act preventing or tending to prevent the court of equity would avail very little to bene- husband from giving to his wife the love, affit the wronged spouse.
fection, companionship, or conjugal relation If divorce, alimony, damages for aliena- to which she is entitled, and that the plaintion of affection, or arrest for nonsupport of tiff in error should not interfere with the deminor children are all of no avail, surely the fendant in error in her efforts to regain the decrees of a court of equity may not bring love, esteem, affection, support and conjugal back the love, affection, esteem, and consort- relation. If the injunction were modified in ium of which so worthless a husband de this form, and, considering the matter as a prives his wife. But these are matters for pure question of equitable principles, conthe consideration of the trial judge, and not cerning personal and property rights grow. for a reviewing court,
|ing out of the marriage relation, I am, in the