ACTIONS FOR ALIENATION OF AFFECTIONS.

Court of Appeals of Lucas County.

#### Smith v. Lyon.

Decided, March 18, 1918.

*Husband and Wife*— Limitation *as to Time for Bringing Action for Alienation of Affections*— When *such a Cause Arises*— Damages *Crim. Con.*

1. By virtue of the provision of Section 11224, paragraph 4, G. C., the right to bring an action for alienation of affections is limited to four years from the time the cause of action accrued.

2. The marital relation is invaded and a cause of action for alienation of affections accrues, whenever a third person by enticement, seduction or other wrongful and intentional interference with 'the marriage relation, deprives either the husband or wife of the consortium of the other.

3. A married woman may maintain an action to recover damages for criminal conversation with her husband.

*Jacobson & Sayles,*for plaintiff in error.

*M. O. Bettig,*for defendant in error.

Richards, J.

Heard on error.

The original action was commenced in the court of common pleas by Ida Bf. Lyon filing a petition to recover damages for the alienation of the affections of her husband. The trial resulted in a verdict and judgment in favor of the plaintiff in the amount *493of $2,500 and we are asked, because of numerous errors which are claimed to exist,, to reverse this judgment.

. The ease was tried on the third amended petition, the answer thereto and the reply. The original petition was filed on June 27th, 1916, and alleged the marriage, of the plaintiff to Hervey C. Lyon on April 25th, 1886, and averred that the marriage relation had continued until June 26th, 1916. On that day Mrs. Lyon and her husband were divorced and on the succeeding day the husband married Sarah E. Smith, and this action was commenced by the divorced wife, Ida B. Lyon. The plaintiff, Ida B. Lyon, and Hervey O. Lyon, are, or were at the time of the commencement of this action, the parents of two grown daughters. The petition further averred that early in the year 1905, the defendant commenced to commit adultery with plaintiff’s husband with the wilful and deliberate intention of alienating his affections from his wife. This petition and two successive amended petitions thereafter filed, were held bad, presumably because of the statute of limitations, the pleadings containing the averment that the alienation of affections continued from early in the year 1905. The third amended petition, after setting out the marriage, avers that for the last four years prior to the beginning of the action, the defendant continuously lived in a. state of adultery with plaintiff’s husband, and that by reason thereof, she has deprived plaintiff of the society of her husband and his assistance and comfort and has wilfully alienated his affections from her.

Although the action was planted and tried as one for alienation of affections, we-are met at the threshold of our investigation of the record with the third amended petition which appears to set forth a cause of action, not simply for the alienation of affections, but also for criminal conversation. It is true that at common law the wife could not maintain an action for criminal conversation had with her husband, and neither could she maintain an action for the alienation of the affections of her husband. Under modern jurisprudence, which takes cognizance of the enlarged rights of a married woman, all but two or three of the states of the Union have recognized the right of a wife to *494maintain an action for the alienation of the affections of her husband and among the states recognizing that right is the state of Ohio. *Westlake*v. *Westlake,*34 O. S. 621.

Under similar principles of jurisprudence, we see no reason why a married woman should not also have the right to maintain an action for criminal conversation with her husband, independent of any question of alienation of affections. The wife’s right of action is lucidly discussed and maintained in 13 Ruling Case Law', 1488, the author concluding with the following statement:

> “Moreover, under modern statutes, the broad rule has been laid down that a married woman may maintain an action for criminal conversation with her husband, it being said that while the injurious eousequences of a wife’s adultery may be more far reaching because of probable difficulties and embarassments in respect of the legitimacy of children, her conjugal rights are in principle the same, substantially, as his, and that, no matter what the ancient doctrine may have been, modern morals and law recognize the equal obligation and right of husband and wife.” *Dodge*v. *Rush,*28 Appeal Cases, District of Columbia, 149, 8 American and English Annotated cases, 671.

It is true that the first petition in the case at bar was met with a motion to separately state and number the causes of action, which motion was overruled, but the plaintiff filed subsequent pleadings and no further attempt was made to compel a separation of the causes of action, and the case was tried and the jury charged as if the action were one for the alienation of affections only.

The answer consisted of a general denial and a plea of the statute of limitations, but the charge omits all reference to the statute of limitations, although much of the evidence that was introduced related to transactions occurring many years prior to the commencement of the action, some of them, indeed, extending back as far as the date which had been set out in the original petition filed by plaintiff, to-wit: the year 1905. By virtue of the provisions of the General Code, Section 11224, paragraph 4, the right of action for the alienation of affections is limited to a *495period of four years after the cause of action accrued. An important question of fact therefore arose in the case as to when the cause of action accrued. The action being one for alienation of affections would evidently accrue when the affections were alienated. The right to bring an action would then arise and when that right arose, the statute of limitations would begin to run. The gist of an action for alienation of á husband’s affections 'is the loss of the society, affection and consortium of the husband. Just when the right to sue accrued was, of course, a question of fact to be determined by the jury. The defendant contended that the right arose in 1905. This question should have been submitted to the jury under proper instructions as to the law. 1 Encyclopaedia of Evidence, 760.

If the right arose in 1905, it was, of course, barred by limitation- when the action was commenced in 1916, unless the offense was condoned and the affections reinstated and again alienated within the statutory period of four years prior to the commencement of the action. The question is very clearly discussed in *Farneman*v. *Farneman,*46 Indiana Appellate Court Reports, 453, which ease was cited with approval by the Supreme Court of Indiana, on October 11th, 1917, in the case of *Fidelity & Casualty Company*v. *Jasper Furniture Company,*117 Northeastern Reporter, 258. See also 25 Cyc. 1148; *Bookman*v. *Ritter,*21 Indiana Appellate Court Reports, 250; *Hogan*v. *Wolf,*10. N. Y. Sup., 896; *MacFadzen*v. *Olivant,*6 East’s Reports, 448. In this last ease, Lord Ellenborough used the following language:

> ‘ ‘ The cause of action in those cases arises from the time of the injury done by the defendant, by the corruption of the body and mind of the wife; for from that time she is less qualified to perform the duties of the marriage state.”

The invasion of the marital relation which gives rise to a right of action independent of the question of Crim. Con. is clearly stated by Donahue, J., in the course of the opinion in *Flandermeyer*v. *Cooper,*85 O. S. 327, 341, in the following language:

> “This right is invaded whenever a third person through machination, enticement, seduction, or other wrongful, inten*496tional and malicious interference with the marriage relation deprives the husband or wife of the consortium of the other.”

See also *Sanborn*v. *Gale,*162 Mass., 412, although we think the rule is not very cautiously stated in this last case, as an action for alienation of affections will lie although the wrongful conduct was not accompanied by adultery.

While the last amended petition limited the complaint to the period of four years, yet the evidence that was introduced covered, as has been said, a much longer period of time and the charge permitted the jury to assess damages for alienation of affections, regardless of when it occurred, and scrupulously avoided giving the jury any instructions on the subject of Crim. Con.

The charge of the court contains instructions to the jury on the subject of a common law marriage between the defendant and Hervey C. Lyon. We are unable to see how the existence or non-existence of a common law marriage between them could, in any wise, affect the rights of the plaintiff below.

The judgment will be reversed and the cause remanded for a new trial.

Chittenden and Kinkade, JJ., concur.