Connecticut. Supreme Court of Errors.

Connecticut reports: containing cases argued and determined in ..., Volume 58 online

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CONNECTICUT REPOETS:



t



BEING BBPOBT8 OF



CASES ARGUED AND DETERMINED



SUPREME COURT OF ERRORS



STATE OF CONNECTICUT.



VOL. LVIII.



By JOHN HOOKER, ^y



PUBLISHED FOB THE STATE OF CONNECTICUT,

By BANKS & BROTHERS,

144 Nassau Stbbet, New York.

1890.



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Entered according to Act of Congress, in the year 1800, for the State of

Connecticut,

By ROBERT J. WALSH, Secretary of the State,

In the office of the Librarian of Congress, at Washington.



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JUDGES

OP THE

SUPREME COURT OF ERRORS

DUBING THE TIME OP THE WITHIN DECISIONS.



Hon. CHARLES B. ANDREWS, Chief Justice.

Hon. ELISHA CARPENTER.

Hon. DWIGHT W. PARDEE.i

Hon. DWIGHT LOOMIS.

Hon. SIDNEY B. BEARDSLEY.*

Hon. EDWARD W. SEYMOUR.^

Hon. DAVID TORRANCE.*



* Retired npon expiration of term, February 9, 1890.
^Resigned November 1, 1889.

'Appointed by the Greneral Assembly In 1889 to fill the vacancy created
by Judge Beahdslet's resignation.

♦ Appointed by the General Assembly in 1889 to fill the vacancy created
by the retirement of Judge Pabdee.



JUDGES OP THE SUPERIOR COURT.



Hon. Edward I. Sanford.
Hon. David Torrance.^
Hon. James Phelps.
Hon. Augustus H. Fenn.
Hon. Frederick B. Hall.
Hon. Samuel O. Prentice.
Hon. John M. Hall.
Hon. John M. Thayer.
Hon. Silas A. Robinson.^



1 Appointed to the Supreme Court. (Note 4 mpra. )
« Appointed by the General Assembly in 1889 to fill the vacancy created
by the promotion of Judge Tobbance.



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The Statute Book referred to in this volume as the Revised
Statutes or General Statutes, is the Revision of 1888.

The month given at the top of each page is that within which
the opinion was filed.



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TABLE OF THE CASES EEPORTED.



Page

Ansonia Bank's Appeal from Commissioners, . . 257

Appeal from Commissioners, Ansonia Bank's . . 257

Appeal from Commissioners, Beach's . . . 464

Appeal from Commissioners, Harris's .... 492

Appeal from Probate, Clark's 207

Appeal from Probate, Hewitt's . . . . • 228
Appeal from Railroad Com'rs, N. York & N. Eng. R.

Jl. Co/s 582

Austin, Merwin v 22

Baker, Egbert v 819

Baldwin v. Miles, 496

Beach's Appeal from Commissioners, . . • 464

Beisiegel v. Town of Seymour, 48

Benedict v, Benedict, 826

Benedict v. Chase, 196

Benton v. Starr, 285

BirdsaU r. Wheeler, 429

Bndnerd Quarry Co., Hotchkiss v 120

Brown & Bros* v. Brown, 85

Brown, Brown & Bros, v 85

Burlington (Town of). Town of Canton v. . . 277

Canton (Town of) v. Town of Burlington, . . 277

Card, Foot v 1

Champion, City of Hartford v. .... 268

Chase, Benedict v 196

Clark's Appeal from Probate, 207

Clerkin, State v 98

Connelly v. Masonic Mut. Benefit Asso., . . 552

Cooley, Ryder v 867

. (V)



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vi CASES REPORTED.

Daniels v. City of New London, .... 156

Derby (Town of), Farrel v 284

Disbrow v. Secor, 85

Egbert v. Baker, 819

Farrel, Morgan v 418

Farrel v. Town of Derby, 284

Foot V. Card, 1

Gates V. Steele, 816

Gaylord v. City of New Britain, .... 898

HaLstead, Ladies' Seamen's Friend So. v. . . . 144

Hamilton, McGann v 69

Harris's Appeal from Commissioners, .... 4^2

Hartford (City of) v. Champion, .... 268

Heminway v. Heminway, 448

Hewitt's Appeal from Probate, .... 228

Hodges V. Kowing, 12

Holloway, Hull v 210

Holt, Huntley v 445

Holt, Rockville Bank v 526

Hotchkiss V. Brainerd Quarry Co., .... 120

Hubinger, Piatt v 168

Hull V. Holloway, 210

Huntley v. Holt, 445

Hurlbut, Soule v 611

Husted V. Mead, 65

Ingraham v. Taylor, 508

Jennings, Warner Glove Co. v 74

Kilbride, King v. 109

King V. Kilbride, 109

Kowing, Hodges v 12

Ladies' Seamen's Friend So. v. Halstead, . . 144



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CASES REPORTED. vii

Lawler v. Murphy, 294

Leake v. Watson, 382

Lepard v. Skinner, 329

Masonic Mut. Benefit Asso., Connelly r. . . 552

McGann v. Hamilton, 69

Mead, Husted v 55

Merwin v. Austin, 22

Miles, Baldwin v 496

Morgan v. Farrel, 413

Murphy v. Lawler, 294

Naugatuck Water Co. v. Nichols, .... 408

New Britain (City of), Gaylord v 898

New Haven (City of), Whitney v 450

New London (City of), Daniels v. ... 156
New York & N. Eng. R. R. Co.'s Appeal from R. R.

Commissioners, 582

Nichols, Naugatuck Water Co. v 408

Osborne v. Taylor, 439

Oviatt, Todd t; 174

Pennsylvania Co^ Roraback v 292

Pierce v. Whittlesey, 104

Piatt V. Hubinger, 158

Plume & Atwood Mfg. Co., Union Hardware Co. v. 219

Raymond, Wakh v 251

Redfield, West Haven Watef Co. v. . . . 39

Reynolds, Woodward v 486

Rockville Bank v. Holt, 526

Rogers, Wm. Rogers Mfg. Co. v 856

Roraback v. Pennsylvania Co., .... 292

Ryder v. Cooley, 867

Schmitz, City of Waterbury v 522

Secor, Disbrow v 85

Seymour (Town of), Beisiegel v 48



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viii CASES REPORTED.

Skiuner, Lepard v 829

Soule V. Hurlbut, 611

Sprague v. Taylor, 542

Starr, Benton v 285

State V. Clerkin, 98

St. Bernard's Cemetery Asso., Application of . . 91

Stebbins v. Waterhouse, 870

Steele, Gates v 816

Taylor, Ingraham v 503

Taylor, Osborne v 489

Taylor, Sprague v , . 542

Todd V. Oviatt, 174

Tyler v. Waddingham, 375

Union Hardware Co. v. Plume & Atwood Mfg. Co., 219

Waddingham, Tyler v 875

Walsh V. Raymond, 251

Warner Glove Co. v. Jennings, . . . . .74

Waterbury (City of), v. Schmitz, . . . . 522

Waterhouse, Stebbins v 370

Watson, Leake v 882

West Haven Water Co. v. Redfield, .... 89

Wheeler, Birdsall V 429

Whitney v. City of New Haven, .... 450

Whittlesey, Pierce v 104

Wm. Rogers Mfg. Co. v. Rogers, .... 856

Woodward v. Reynolds, 486



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CASES ARGUED AND DETERMINED
nr THx

SUPREME COURT OF ERRORS

OF THE

STATE OF CONNECTICUT.



Lauba L. Foot v8. Maria D. Card.

New Haven Co., June T., 1889. Andbews, C. J., Cabpenter, Pabdbb,
Looms and Bbabdsley, Js.

A wife* 8 right to the affection and society of her husband is the same as his

right to hers.
An action can be maintained by a wife against a woman who has alienated

from her the affection and deprived her of the 8<^iety of her husband.
And the suit can be maintained in her own name, without her .husband

being joined.
And it does not affect her right of recovery that she and her husband are

living together.
And the damages recovered become her property.

[Argued June 4th— decided September 13th, 1889.]

Action for the alienation by the defendant of the affec-
tions of the plaintiff's husband; brought to the Superior
Court in New Haven County. The declaratory part of the
complaint was as follows : —

1. That the plaintiff was and is the wife of Enos Foot, of
the town of New Haven, and in 1872, and for many years
previous thereto, she was living happily with her said husband
at New Haven as his wife.

2. About the year 1872 the defendant came to New Ha-
ven, and by her acts, blandishments and seductions alien-
ated the love and affection of the plaintiff's husband, and

Vol. Lvni. — 1 (1)



58
61

|7o


3

1
150


56

76

le76


1
138
139



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SEPTEMBER, 1889.



Foot V. Card.



destroyed her happiness and the happiness of her home, and
has continued so to do to the date hereof.

8. The defendant has at various times from 1872 to 1888,
and at various places, committed adultery with the plaintiff's
said husband, and by means thereof has obtained large sums
of money.

4. The plaintiff has suffered great pain of body and
great distress of mind, and has lost the love and affection
and society of her husband, and her own health and happi-
ness, and has been neglected and abandoned by her said
husband in consequence of the wrongs and injuries of the
defendant as aforesaid, and said abandonment still continues.

The defendant pleaded in abatement that the husband
should have been joined as a co-plaintiff. The plaintiff de-
murred to the plea, and the court held it insuflBcient. The
defendant then demurred to the complaint, the causes of
demurrer assigned being fully stated in the opinion. Upon
these pleadings the case was reserved for the advice of this
court.

C. S. Hamilton^ for the defendant.

1. The suit cannot be maintained without the joinder of
the husband. 1 Swift's Dig., 37; 2 Addison on Torts, 1107 ;
Fowler v. Frisbie^ 3 Conn., 320, 324; Fdwards v. Sheridan^ 24
id., 165, 169 ; Smith v. Bank of New Fhtgland, 45 id., 416, 418.

2. The demurrer to the complaint should be sustained.
The law is well settled in this state that such an action as
this cannot be maintained, and as no obvious reason appears
in this case why the court should depart from the law as it
stands, the complaint should be held insufficient. The fact
that our reported cases do not show a single decision, or even
obiter dictum^ which hints that such a suit can be maintained,
is good evidence of how the courts and profession have
always regarded this matter. In the nature of things it
must have happened ere this in numerous instances that men
have abandoned their wives for other women ; but none of
the profession have ever thought that a woman could be
sued for seduction any more than she could be prosecuted



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SEPTEMBER, 1889.



Foot V. Card.



for rape ; and when the day comes that the courts are open for
a woman to be paid in dollars and cents for the hours her hus-
band has spent with some other woman, the days of all sorts of
delicacy and modesty in women are gone. In the revision
of Swift's Digest, by Judge Dutton, (vol. 1, p. 38,) the prin-
ciple we are contending for is laid down in these words:
"Though the husband can bring an action for injury done
to the wife, yet she can never bring an action for an in-
jury done to the husband, though she may have sustained
the greatest damage by it. An action was brought by a
woman, alleging that the defendant had by fraud and artifice
induced her husband to drink so much strong liquor that he
died instantly, by which she had lost his protection and sup-
port. After verdict for the plaintiff the declaration was
adjudged to be insufficient. There is no principle ever
adopted by courts of justice that will warrant such an
action." To the same effect are the following authorities :
1 Addison on Torts, 43 ; Cooley on Torts, 227 ; Lynch v.
Knight^ 9 H. L. Cases, 577, 589 ; Van Amam v. Ayers^ 67
Barb., 544; Logan v. Logan^ 77 Ind., 558, 564. The utter
absence in all the reports of cases of this character is one of
the surest indications that it has always been understood by
the profession generally that such suits could not be main-
tained. As a matter of principle and public policy there is
every reason why the law should remain as it is, certainly
until it is changed by legislative enactment. If the people,
through their representatives in General Assembly convened,
say that they desire an act by virtue of which such a suit can
be maintained, it will then be time enough for the court to sus-
tain such an action, but until then no such law should be thrust
upon the peopk as is sought to be made by this case. The
conditions of society and the employments of men necessa-
rily place them in many positions where entirely innocent
women might be subject to suits of this character from men's
wives who, through petty and unfounded jealousy, would be
willing to rush into the courts to redress pretended griev-
ances of this sort. One of the chief grounds on which an
action of criminal conversation is based is the imposition



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SEPTEMBER, 1889.



Foot V. Card.



upon the injured husband of a spurious offspring, but there
can be no danger of a wife having inposed upon her a spu-
rious offspring. There is no difficulty in a woman determin-
ing whether she has been delivered of a child or some other
woman. It is physically impossible for a man to be seduced
in the sense that it is understood in the law. He must
always be equally or more than equally guilty in the offense
of adultery, and it would certainly be a novel feature of the
law that a wife could maintain an action for the commission
of an act for which her husband was more than equally
guilty with the defendant.

C. R. Fowler^ for the plaintiff.

1. The law will give redress for such an injury as this.
The pursuit of happiness and to be secure in that pursuit, in
the marriage relation, are inherent rights. The happiness
of the marriage relation cannot be destroyed by man or
woman with impunity and the law furnish no redress. " If
there can be shown a concurrence of loss and injury from
the act complained of, we are bound to say this action lies.
Nor can I allow that the loss of e&Mortium^ or conjugal
society, can give a cause of action to the husband alone. I
think it may be a loss which the law may recognize to the
wife as well as to the husband." Campbell, Lord Chan-
cellor, in Lynch v. Knight, 9 H. of L. Cases, 577, 588. The
English common law is not adopted in this state except by
judicial practice. Baldwin v. Walker^ 21 Conn., 181. The
state constitution (Art. 1, sec. 12,) provides that "every
person for an injury done him shall have remedy by due
course of law." There is no rule of law preventing this
action. "As nature abhors a vacuum and fills it with mat-
ter, so the law abhors a wrong and finds the remedy."
"The law has wisely afforded a remedy for every wrong and
is not restrained by any inflexible rules." The husband
may be, of all men, least inclined to vindicate the rights of
his wife. He cannot prevent their vindication by the law.
Berger v. Behley^ 45 111., 72, 75; City of Peru v. French,
65 id., 817, 823. " It would be a humiliation were we obliged



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SEPTEMBER, 1889.



Foot V. Card.



to coDfess that courts would be powerless to furnish a rem-
edy for such a wrong as this case discloses." LooMis, J., in
Adams v. Adams^ t51 Conn., 135. "The court can promulge
as law any provision which will meet the particular mis-
chief." HosMER, C. J., in Card v. Ghrinman^ 5 Conn., 168.
The existence of the wife as a person, with personal rights
separate and apart from the husband, has always been recog-
nized in this state. "The ground of this action is the wife's
personal injury." Fvller v. Naugatuck R. R. Co,^ 21 Conn.,
567, 578; Gen. Statutes, § 987. Wives have rights in their hus-
band's fidelity to the marriage contract " which the courts are
bound to respect." The good of society, public health and
morals, an^ private happiness, demand that the right of the
wife in the consortiiim of her husband, shall be protected by
the courts; that both parties to the marriage contract shall
be protected alike in their contract rights. Westlake v. West-
lake, 84 Ohio St., 621 ; Clark v. Rarlan, 1 Cin. Sup. Ct., 418 ;
Baker v. Baker, 16 Abbot's New Cases, 298; Warner v.
jmUer, 17 id., 221 ; Churchill v. Lems, id., 226 ; JayrieB v.
Jaynes, 89 Hun, 40. "It is no answer for the defendant to
say that the plaintiff could seek redress against her husband,
bring an action for divorce, and, crying for bread, possibly
obtain an order that he pay alimony. It would be a reproach
to the law, alike illogical and immoral, if such a defense
could prevail." Neilson, C. J., in Breiman v. Paasch, 7
Abbot's New Cases, 249, 253.

2. The wife can maintain the suit in her own name. The
husband has no interest in obtaining the judgment. Besides
this, by the adultery with the defendant the husband has
renounced his marital right to the person of his wife as com-
pletely as he could by articles of separation. Should he try
to hold her forcibly after this violation of the marriage con-
tract, she would be dischai'ged on habeas corpus. He cannot
compel her to live with him. Rex v. Mead, 1 Burr., 542 ;
Rex V. Lister, 1 Strange, 478. By this breach of the mar-
riage contract the husband has abandoned his marital rights
in and his duties to his wife, and conferred on her all the
rights of '9»feme sole. Gen. Statutes, § 2794. " The husband



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SEPTEMBER, 1889.



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So far forth as the husband is concerned, from time im-
memorial the law has regarded his right to the conjugal affec-
tion and society of his wife as a valuable property, and has
compelled the man who has injured it to make compensa-
tion. Whatever inequalities of right as to property may re-
sult from the marriage contract, husband and wife are equal
in rights in one respect, namely, each owes to the other the
fullest possible measure of conjugal affection and society ;
the husband to the wife all that the wife owes to him.
Upon principle this right in the wife is equally valuable to
her, as property, as is that of the husband to him.

Her right being the same as his in kind, degree and
value, there would seem to be no valid reason why the law
should deny to her the redress which it affords to him.
But from time to time courts, not denying the right of the
wife in this regard, not denying that it could be injured,
have nevertheless declared that the law neither would nor
could devise and enforce any form of action by which she
might obtain damages.

In 8 Blackstone's Cpmmentaries, 148, the reason for
such denial is thus stated. " The inferior hath no kind of
property in the company, care or assistance of the superior,
as the superior is held to have in those of the inferior;
therefore the inferior can suffer no loss or injury."

Inasmuch as by universal consent it is of the essence of
every marriage contract that the parties thereto shall, in re-
gard to this particular matter of conjugal society and affec-
tion, stand upon an equality, we are ^unable to find any
support for the denial in this reason, and the right, the
injuiy, and the consequent damage, being admitted, then
comes into operation another rule, namely, that the law will
permit no one to obtain redress for wrong except by its
instrumentality, and it will furnish a mode for obtaining
adequate redress for every wrong. This rule, lying at the
foundation of all law, is more potent than, and takes pre-
cedence of, the reason that the wife is in this regard with-
out the pale of the law because of her inferiority.

In Lynch v. KnighU 9 House of Lords Cases, 689, the wife.



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SEPTEMBER, 1889.



Foot V. Card.



with whom the husband was joined for conformity, com-
plained that the defendant, a man, had alienated from her
the conjugal affection of her husband and deprived her of
his conjugal society by falsely asserting to him that she had
been guilty of unchaste conduct; and asked damages. The
defendant had judgment for the reason that the court was
of opinion that the statement by the defendant to the husband
did not, as a fact, occasion the alienation of affection and con-
sequent separation complained of. In dismissing the case
for this reason the Lord Chancellor said : " Although this
is a case of first impression, if it can be shown that there is
presented to us a case of loss and injury from the act com-
plained of, we are bound to say that this action lies. Nor can
I allow that the loss of consortium^ or conjugal society, can
give a cause of action to the husband alone. * * * The loss
of conjugal society is not a pecuniary loss, but I think it
may be a loss which the law may recognize to the wife as
well as to the husband." Lord Cean worth said: — "In
the view I take of this case I do not feel called upon to
express a decided opinion on this point. I believe your
Lordships are not all agreed on it; and I will therefore
only say that I am strongly inclined to think that the view
taken by my late noble friend," (the Lord Chancellor) " was
correct."

Wherever there is a valuable right and an injury to it,
with consequent damage, the obligation is upon the law to
devise and enforce such form and mode of redress as will
make the most complete reparation. A technicality must
not be permitted to work a denial of justice. The defend-
ant has no possible interest in requiring the husband to be
co-plaintiff, other than that she should have security for her
costs in this suit, and be protected from a second judgment
upon the same cause of action in his name. As she is in no
danger of a second judgment, and can compel the plaintiff
to give security for costs, it is simply an empty technicality
which she here interposes. There are good reasons for the
rule that the husband should join in a complaint for dam-
ages resulting from an injury to the person, property, repu-



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10 SEPTEMBER, 1889.

Foot V, Card.

tation or feelings of the wife in every case other than that
before us. Whenever in any of these she suffers, presum-
ably he suffers; he has a direct pecuniary interest in the
result; and the defendant is entitled to protection from
a second judgment. But, in the case before us, it is the
pith and marrow of the complaint that in alienating the
husband's conjugal affection from the wife, in inducing him
to deny his conjugal society to her, in persuading him to
give his adulterous affections and society to the defendant,
the latter has inflicted upon the plaintiff an injury by which
from the nature of the case it is impossible for the husband
to suffer injury ; for which it is impossible for him to ask
redress either for himself or for his wife. To ask in his
name would be to plant the seeds of death in the cause at
the outset, and the law does not compel those who have



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