Humphrey v. Pope
Before: Chipman
Synopsis
Action by Married Woman—Enticing Away Husband.—A married woman, whose husband has deserted her, may maintain an action in her own name for damages against another woman who has alienated her husband’s affections, and enticed and abducted him from her, with intent to deprive her of his companionship, assistance, and support.
Id.—Parties—Desertion by Husband—Construction op Code.—Section 370 of the Code of Civil Procedure, which authorizes a married woman to sue alone, without joining her husband as a party, “when she is living separate and apart from her husband, by reason of his desertion of her,” is to be construed together with section 95 of the Civil Code, defining willful desertion; but it is not necessary that the desertion must have continued for the statutory period entitling the wife to a divorce, in order to enable her to sue in her own name.
Id.—“Abduction” op Husband—Persuasion and Enticement.—Section 49 of the Civil Code, forbidding “the abduction of a husband from his wife,” and “the abduction or enticement of a wife from a husband,” is not to be construed as limiting the wife to an action where her husband has been forcibly taken from her, or as conferring a more favorable rieht of action upon the husband than upon the wife. The “abduction,” in either case, may be accomplished by persuasion or enticement; and the section confers upon the wife a right of action against another woman for alienating her husband’s affections and enticing him away from her.
Id.—Damages—Community Property.—The question whether the damages recovered by the wife would or would not be community property cannot affect the right of the wife to sue in her own name, when expressly given both a right of action and a remedy in her own name by the provisions of the code.
Id.—Gist of Action—Pleading—Certainty.-*-The gist of the action by the wife is the enticing or taking away of her husband, and alienating his affections, and although a complaint alleging such gist ought also to state with some certainty during what period of time the enticements of the defendant were brought to bear upon the husband, yet the failure so to do, though specially demurred to, is not ground for dismissing the action, without leave to amend; but the plaintiff would be entitled, under such complaint, to prove' that the conduct of the defendant began while her husband was living with her, prior to his alleged desertion of her, and that defendant enticed him away from the plaintiff,
CHIPMAN, C. Action for damages. A demurrer to the amended complaint was sustained without leave to further amend, and judgment was given in favor of defendant, from which this appeal is prosecuted. The complaint alleged that at all the times mentioned in the complaint plaintiff and one W. G. Humphrey were husband and wife; on the-day of September, 1896, the husband willfully deserted plaintiff, and by reason of said desertion plaintiff “is living separate and apart from him”; defendant, “willfully and wrongfully intending to injure plaintiff and to deprive her of the affection, support, comfort, fellowship, society, aid, and assistance of ... . the said husband, wrongfully, .... at divers days and times before the commencement of this action, and while such marriage existed, alienated and destroyed the affection of the .... husband of this plaintiff .... and did illegally persuade, entice, and abduct said W. G. Humphrey from plaintiff, whereby plaintiff has wholly lost and been deprived of the assistance, comfort, fellowship, society, aid, and support of ... . her said husband, to all of which plaintiff during all said time was entitled .... and otherwise would have had, but for th.e illegal persuasion, conversation, and the enticement, abduction, and doings and [255]actions of defendant, as hereinbefore recited.” The demurrer was upon several grounds: 1. Plaintiff had not legal capacity to sue; 2. Insufficiency of facts to constitute a cause of action; 3. The complaint is ambiguous, unintelligible, and uncertain.
1. Respondent contends that plaintiff could not bring the action without making her husband a party plaintiff.
The amended complaint was filed June 7, 1897, and the alleged desertion occurred in September, 1896. The statutory period required to make the desertion cause of divorce had not elapsed. In Andrews v. Runyon, 65 Cal. 629, the wife sued in her own name alone for personal injuries. It was objected that she could not do so, but that the husband must be joined. It was held that section 370 of the Code of Civil Procedure authorized the suit, because when commenced she was living separate and apart from her husband by reason of his desertion of her. (Baldwin v. Second Street Cable R. R. Co., 77 Cal. 390.)
Section 370 of the Code of Civil Procedure requires the husband to be joined when a married woman is a party, which is the common-law rule; but the section introduces certain exceptions, and among them: “3. When she is living separate and apart from her husband by reason of his desertion of her, or by agreement in writing entered into between them, she may sue or be sued alone.” It was held under the provisions of the act of March 9, 1870 (Stats. 1869-70, p. 226), in Tobin v. Galvin, 49 Cal. 34, that the words “while living separate and apart from her husband” do not mean a temporary absence of the wife. There must have been an abandonment on the part of the husband or wife, or a separation which was intended to be final. The code adds to the language of the former act the words “by reason of his desertion of her.” The desertion through which comes the separation and forms the exception we do not think must necessarily have continued for the statutory period entitling the wife to a divorce. But the desertion must be such as is given as a cause for divorce by section 95 of the Civil Code, towit, a voluntary separation with intent to desert. The two sections should be read together to ascertain the meaning of the word “desertion” in section 370 of the Code of Civil Procedure. Section 107 of the Civil Code fixes the time the desertion must continue; but what is willful desertion
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