FEDERAL REPORTER, Co. and another v. WABASH, ST. L. & P. By. Co. and others. (YAKEY, Intervenor.)!
(Circuit Court, E.
January 5, 1886.)
RAILROAD COMPANIES-FENCES- DOUBLE DAMAGES FOR KILLING CATTLE-RE-
Mo. §i 809. The fact that a railroaa is in the hands of receivers of this court does not make it any the less liable under section 809 of the, Reviserl Rt,<>.tnt"", of !1issouri for double damages for killing cattle.
In Equity. Petition for rehearing on the intervening petition. The intervenor asks in his petition for double damages for the killing of two heifers by the Quincy, Missouri & Pacific Railroad, June .11, 1884, and alleges that the heifers were reasonably worth when killed $550, and $50, respectively. '1'he double damages were claimed under section 809, Rev. St. Mo. The claim having been referred to a master, he reported that the intervenor was not entitled to double damages, and that the cattle were only worth $200, and $30, respectively. He recommended, therefore, that the following order be entered: "Ordered that the recei'Ver herein pay to Peter H. Yakey out of the incoming rents and profits of the property in their charge, not otherwise appropriated by the previous orders of this court, the sum of $230, with interest at the rate of six per cent. from the thirteenth day of June, 1885." The intervenor excepted to this reo port, and it was overruled by TREAT, J., as to double damages not being allowable, and in other respects confirmed. The matter now comes up on a motion by the receivers for a rehearing, asking that the master's report be confirmed in all things. H. S. Priest, George S. Grover, and E. Smith, for receivers. James Carr, for intervenor. BREWER, J., (orally.) In this case the only question is whether the double damage act of the state of Missouri is to be enforced as against railroad property in the hands of a receiver. The supreme court of the United States have affirmed the validity of that act;2 and I know of no reason why it is not applicable to every road in the state, whether in or out of the hands of a receiver. It is true there lDay be no equity, where the court takes possession of the assets of an insolvent corporation, in saying to one man, whose cow is killed, "We will double the value of your cow as a basis of adjustment," and to a man who has done a day's work, "We WIll adjust your claim only at the value of such work," and then distribute the assets upon that basis between them. But while there may be no equity in that mode of distribution, (and so I said in response to a letter written by some one who wanted to have me send all these cow cases to the state courts for trial,) yet when the question is put directly before the court"
by Benj. F. Rex, Esq., of the St. Louis bar. 'Missouri Pac. Ry. Co. v. Humes, 6 Sup. Ct. Rep. 110.
MEHRHOFF V. MEHRHOFF.
as to whether it will or not recognize the binding force'ofthe statute against a road in the hands of its receivers, I have no doubt but that it is its duty to recognize it as binding, and adjust the compensation accordingly. The exceptions to the report of the master will be sustained, and the petition for rehearing denied.
(Oircuit Oourt, D. Kan8a8. January 2, 1886.)
HUSBAND AND WIFE-AcTION BY WIFE FOR ALIENATING HUSBAND'S AFFECTIONS-COMP. LAWS KAN. c. 62, §§ 1-4-.
A married woman, in Kansas, can maintain an action in her own name for the alienation of the affections of her husband, and depriving her of his soCiety, care, and support. . :
In an action by a wife to recover damages for the alienation of her husband's affections, a complaint alleging that defendants began systematically to poison and prejudice the mind of her husband by telling him false stories about her, and charging her with unwillingness and inability to do housework, and by treating her with gross disrespect in his presence, and finally by falsely and maliciously charging her in hiS presence with having committed adultery, is not sufficient, except as to the allegation as to the charge of adultery, and as to that it should be made more specific by stating the time and place where the words were spoken, and what words were used. .
The opinion states the facts.
FOSTER, J. The plaintiff sues to recover damages for an alleged violation of her marital rights, in this, to-wit: that the defendants, who are the father and mother of William Mehrhoff, her husband, conspired to separate the plaintiff and her saId husband, and to deprive the plaintiff of the care and society of her said husband, and alienate his affections from her; that, to accomplish the said purposes, the defendants began systematically to poison and prejudice the mind of her husband against her by telling him false stories about the plaintiff, charging her with unwillingness and inability to do housework, and by treating plaintiff in her husband's presence with gross disrespect, and finally by falsely and maliciously charging the plaintiff, in her husband's presence, with having committed adultery,-by reason whereof, the affections of the plaintiff's husband were alienated froin her, and caused him to treat her badly, and with such cruelty that she was compelled to take her infant child and flee from her husband,'s, domicile in the night-time, and that he has completely abandoned her and said child j that he has no property out of which she could
Day tf Dodge and Ma.her tf Osmond, for plaintiff. H. D. McMullen and Dieffenbacker et Banta, for defendants.
Reported by Robertson Howard, Esq., of the St. Paul bar.
be decreed alimony, etc., to her damage, $5,000. To the petition defendants file a general demurrer. Can a married The main question presented in this case is woman maintain an action in her own name for the alienation of the alIections of her husband, and depriving her of his society, care, and support? It must be said that no such right of action existed under the common law by reason of the legal unity of husband and wife. Hal!J the legislation on the rights of married women in this state removed this barrier of the common law? In Westlake v. Westlake, 34 Ohio St. 621, this question is discussed at length under the statute of that state, and the court, by a divided bench, (a majority of one,) held that the wife could maintain her action. In Logan v. Logan, 77 Ind. 558, the court, by a majority of one, decided that under the statutes of Indiana the wife could not maintain an action, but, the· words being slanderous, she could maintain her action of slander. It will be observed from reading these cases that under both the statutes of Ohio and Indiana the right of a married woman to sue or be sued alone was restricted to certain subjects and causes of action. Under the statutes of this state the right of a married woman to sue and be sued iswithotit restriction or limitation in terms. It reads as follows: "A woman may, while married, sue and be sued, in the same manner.as if she were unmarried." St. 1879, c. 62, § 3. The statute also protects her in the enjoyment of her separate real and personal property, and gives her the right to sell and convey such property, and make contracts in reference thereto, to the same extent as a married man in relation to like property of his own. It also authorizes her to carryon trade and business, and perform labor and service on her sole and separate account, and makes her earnings her sole and separate property, and gives her authority to invest the same in her own name, etc. Sections 1-4, c. 62, Laws 1879. In reference to the matter of suing or being sued she stands on the same footing as the unmarried woman. For any violation of personal rights an unmarried woman has the same remedy that a man has. She may sue for an injury to her character, her person, or her property. A right of action to this extent is clearly given to a married woman under the statutes. Furrow v. Chapin, 13 Ran. 112; Townstlin v. Nutt. 19 Ran. 284. Words imputing unchastity to a female give her a right of action for slander, and it seems to me that the provision of the statutes ,of Kansas was intended to and does liberate a married woman from the common-law disability, so far as to. enable her to sue for any violation of her personal rights, as well as for injury to her property; and. in the words of the court in the case of Westlake v. Westlake. supra: "If at common law the husband could maintain an action for loss of consortium of the wife, I sl:le}lOrea:son why, under our law, the wife cannot maintain an action for the loss of consortium of the husband." It is quite apparent by the language used that it is the intent of the statute that a
woman, so far as the power to assert or maintain her rights in a court is concerned, should not be affected by coverture; and the lawin that respect places her where she was before the marriage. It is true this right of action grows out of a relation only arising where the married relation exists, but I have but little doubt that it comes within the spirit and intent of the law, and that it was the pnrpose of the legislature to permit a married woman to sue for a violation of her personall'ights, although such rights grow out of the marital relations. It should be remarked, in conclusion, that it is very doubtful if the words or conduct imputed to the defendant are sufficient to base this action upon, with the exceptions of the words charging the plaintiff with adultery. Lynch v. Knight, 9 H. L. 577, cited in Westlake v. Westlake. As to this particular charge, the time and place and, if possible, the words spoken should be set out in the petition, so that the defendants may be informed exactly what charge they are required to meet. The demurrer will be Bustained as to the latter objections,-that is, the insufficiency of the allegations in reference to the words spoken, as 1 have indicated,-and overruled as to the other question, with leave to the plaintiff to amend within 20 days.
CRANE 'V. RUNEY.
(Oircuit Oourt, D. Oregon. January 18,1886)
MONEY RECEIVED ON ERRONEOUS JUDGMENT.
Where money is received on an. erroneous by a party thereto, the law, on a reversal of the same, raises an obligation against such party to restore the amount, which obligation may be enforced by an action as for money had and received to the use of the plaintiff therllin.
CASE IN JUDGMENT.
In a suit to enforce a mechanic's lien, the parties thereto, with others having liens on the same property, were made defendants, and the court,by·its decree directing the sale of the property and the distribution of the p.roceeds among the parties, postponed the payment of the plaintiff's claim to .that of the defendants, which portion of the decree the supreme court, on appeal taken after the confirmation of the sale and the distribution of the proceeds, reversed, and also ordered a resale. Held that, on the reversal of the erroneous decree, the defendant, in contemplation of law, held the money wrongly received by him thereon for the use and benefit of the plaintiff, to whom it should have been originally adjudged and paid, and that he might maintain an aCtion to recover the same as for money had and received to his use; and the order of resale did not limit or affect his right in this particular.
Action to Recover Money. Claude for plaintiff. Raleigh Stott, for defendant. DEADY, J. This action is brought by the plaintiff, a citizen of California, to,recover from the defendant, a citizen of Oregon, the sum of