source: Caselaw Access Project

author: Spear, J.

license: Public Domain

text:
    The Ann Arbor Railway Company v. Amos.

      Railroad agent issues ticket to passenger — Negligently inserting therein wrong station — As traveller's stated’ destination — Passenger entitled to passage to correct station, when — Conductor refuses ticket tendered and ejects passenger — Such act regarded as act of company — Injured party entitled to damages, when — Law of contracts — Liabilities of common carrier.

    1. The general principle that where a party does all that he is required to do under the terms of a contract into which he has entered, and is only prevented from reaping the benefit of such contract by the fault or wrongful act of the other party to it, the law gives him a remedy against the other party for such breach of contract, applies to a railroad ticket issued to a passenger by a railroad company for passage over its road.
    2. Where a passenger on a railroad car presents to the conductor a ticket issued by authority of the railroad company claiming a right to ride thereon, the language of which ticket is ambiguous and of doubtful import, it should be construed most strongly against the carrier and in favor of the purchaser.
    3. Where such ticket is for the passage over three lines of road and specifies upon its face that it is good for one first-class passage from the point of starting to a point on the third line, (being the point to which the passenger desires to be carried), and calls for an exchange at the office of the intermediate line, and, in making the exchange the ticket agent of such line, carelessly and negligently, and without the knowledge of the passenger, writes in the ticket issued by him the proper destination but writes in the coupon attached thereto as the point of destination the name of a station on the third line some miles nearer than the point called for by the ticket itself and by the initial ticket, the passenger, not being himself guilty of negligence, having done all that is incumbent on him to do under the circumstances, is entitled to be carried to his destination without further payment of fare.
    4. Where in such case the passenger exhibits to the conductor on the train both of such tickets, and the conductor refuses to permit the passenger to ride to his destination on the same, saying he will telegraph the office of the general passenger agent for instructions, and he does so telegraph, giving the facts as they appear, a question is raised between the company itself and the passenger, and it is the duty of the company having had sufficient time to consider the claim of the passenger to thus be carried on the tickets, to give proper, instructions to the conductor directing such carriage.
    5. If in the issuing of a second ticket by the intermediate line in favor of a companion of the one purchasing the ticket above described, and given in exchange for a like ticket issued by the initial company, the agent of the intermediate line negligently and without the knowledge of the passenger, writes into the ticket at the head of it and into the coupon attached, the name of a station on the third line some miles nearer than the proper point of destination, the passenger being himself free from negligence, and tendering to the conductor the legal fare for the difference between the point thus wrongfully named and the point of destination, is entitled to be carried to such point. And if the conductor, obeying a direction of the passenger agent, forcibly ejects the passenger from the car because of the irregularity in the ticket, such act will be regarded as the act of the company, and being wrongful, will entitle the injured party to recover substantial damages from the company.
    (No. 12496 —
    Decided January 16, 1912.)
    Error to the Circuit Court of Lucas county.
    Action was brought by Mette E. Amos (defendant in error) against The Ann Arbor Railway Company (plaintiff in error) in the court of common- pleas of Lucas county to recover for an alleged unlawful ejection from a passenger car of the Company’s railroad. A verdict for twenty-five hundred dollars was rendered by the jury, which by the trial court was reduced to eighteen hundred dollars and for that sum judgment was entered. This judgment was affirmed by the circuit court. The Company asks a reversal of both judgments. Facts are stated in the opinion.

      Messrs. Smith & Beckwith, for plaintiff in error.
    The tort (if tort there was) was committed in Michigan and is controlled by the law of that state. We submit that the request to charge states the law of Michigan applicable to the case at bar as settled by a number of decisions of the supreme court of Michigan. These we introduced in evidence in the case and the opinions are printed in the record of this case. They are the following: Frederick v. Railroad Co., 37 Mich., 342; Heffron v. Railway Co., 92 Mich., 406; Mahoney v. Railway Co., 93 Mich., 612; Brown v. Railway Co., 130 Mich., 483; Brown v. Railway Co., 134 Mich., 591; Van Dusan v. Railway Co., 97 Mich., 439.
    We call ■ attention also to the decision of the United States circuit court of appeals, sixth circuit, in Pauilin v. Railway Co., 52 Fed. Rep., 197.

      Mr. Frederick J. Flagg and Mr. Prescott Smith, for defendant in error.
    To have the Michigan rule apply it is a necessary fact that the passenger be without evidence of having paid his fare. That fact is not true in this case as we showed to the conductor, Richard’s ticket, the contract portion of which entitled him to ride to Alma, Mich., and two original contracts issued by the company’s agent entitling both parties to ride to Alma, Mich. We thus submit that under the Michigan rule the company should have carried these people to Alma, Mich. Scofield v. Penna Co., 112 Fed. Rep., 855.
    That the law laid down in the Scofield case is the law of Ohio is shown in Railway Co v. Conner, 74 Ohio St., 225; Railway Co. v. Reynolds, 55 Ohio St., 370.
    If a ticket is of doubtful meaning or ambiguous it should be construed most strongly against the carrier by whom it is issued and in favor of the purchaser. 6 Cyc., 573; Railroad Co. v. Clarke, 97 Ga., 706; Railway Co. v. Kinsley, 27 Ind. App., 135.
    It is well settled that the actual contract between the carrier and passenger must govern and not the recitals of a ticket. The ticket is mere evidence of the contract issued by the carrier and cannot be controlled by the passenger. Railway Co. v. Harris, 115 Tenn., 501.
    A person who calls for a ticket good to a particular station and pays the price demanded therefor has a right to rely on the agent of the company to give him the proper ticket and no peculiar circumstances intervening, there is no duty on the person to examine the same and any mistake that may occur as to the point of destination is chargeable to the railway company, and not the person receiving or purchasing the ticket. Rail

      road Co. v. Dougherty, 86 Ga., 744; Railroad, Co. v. Pauson, 70 Fed. Rep., 585; Railroad Co. v. Conrad, 4 Ind. App., 88; Railroad Co. v. Winter’s Admr., 143 U. S., 60.
   Spear, J.

The evidence given at the trial proves, or tends to prove, a state of facts in substance as to the material parts thereof, as follows: On the 22d day of July, 1903, Mrs. Amos purchased of the agent of The Norfolk & Western Railway Company, at the place of her residence, Ironton, Ohio, two tickets known as summer tourist tickets, good from Ironton b)^ way of Cincinnati and Toledo to Alma, Michigan, the route being from Ironton to Cincinnati via the Norfolk & Western, thence via the Cincinnati, Hamilton & Dayton to Toledo, and from Toledo to Alma over the road of the Ann Arbor. Each was good for one first-class passage to Alma and return by the same route. One ticket was for Mrs. Amos herself and the other for her son Richard, a youth of twelve years. The tickets were signed by the ticket agent as such and by the mother and son respectively as purchasers. Attached to each were three coupons; one for passage from Ironton to Cincinnati, one for an exchange ticket to Alma, Michigan, and return, and a return coupon from Cincinnati to Ironton. The tickets were dated July 22d and contained the words “Alma, Michigan, and return.” They called for an exchange at Cincinnati of coupons by the Cincinnati, Hamilton & Dayton over that road, and over the Ann Arbor. On the morning of the 23d July Mrs. Amos and her. son went to the depot of the Cincinnati, Hamilton & Dayton road, at Cincinnati, and there presented to the ticket agent their tickets for the proper exchange. The agent, after much delay, tendered them tickets for each to sign respectively as purchasers, and they were hurriedly signed. At the top of the boy’s ticket were the words: “Cincinnati, Hamilton & Dayton Ry. Co. Tourist’s Special Ticket. Good for one first-class passage for one person and one hundred and fifty pounds of personal baggage to the value of $100 and no more, to Alma, Michigan, and return when officially stamped on back hereof and presented with coupons attached. Exchanged.”

The other ticket contained at the same place upon it the same words except that Ann Arbor, Michigan, was written in place of Alma, Michigan. The coupon attached to the Cincinnati, Hamilton & Dayton tickets, instead of being made to read to Alma, Michigan, were written to read to Ann Arbor, Michigan, which is a station on the Ann Arbor railroad some fifty miles from Toledo. All four tickets were handed by the agent to Mrs. Amos, folded in an envelope. Each of the Ironton tickets, when they returned, had pasted at the bottom the Norfolk & Western coupon good for return passage from Cincinnati to Ironton. Mrs. Amos was not aware of the agent’s blunder and did not suspect it. The delay of the agent in writing up the exchanged tickets gave her only time to reach the train, and left no time for an examination of the tickets had she desired to do so. She had to run to catch the train. In fact she did not examine them. Whether or not she would have discovered the blunder of the agent in filling up the coupons and one of the tickets, had she examined them, is matter of conjecture. The Cincinnati, Hamilton & Dayton train reached Toledo in the afternoon of the 23d, and Mrs. Amos and her son at once took the Ann Arbor train for their destination, Alma. The train passed Ann Arbor at five o’clock in the afternoon. Shortly after the train left that station the conductor approached Mrs. Amos and inquired why she had not got off at Ann Arbor. She explained that her destination was Alma, and then exhibited all four of her tickets, as well as those issued by the Norfolk & Western as those issued by the Cincinnati, Hamilton & Dayton. He took all four tickets, saying he would telegraph back and see what he could do about the tickets. Later he told her he had so telegraphed and had heard from their agent and he wanted him to collect two fares. She declined to pay, insisting that the tickets showed that fare had been paid to Alma, and that was the fact. The conductor came several times and demanded payment of fares from Ann Arbor to Alma. Finally he told her he was about tired of fooling with her and if she didn’t pay for both they would have to get off. She tendered him one full fare for herself and half fare for the boy. He did not accept either. Fie again told her they would have to get off. She answered: “If I get off you will have to put me off.” He replied: “Well, I can do that.” By this time the train had reached Bannister, a small place a few miles from Alma. Flere the train was stopped, after it had been started, and she was put off onto the ground, there being no platform there. She testifies that the conductor and brakeman lifted her out o'f the seat and dragged her backward out of the train. To some extent this description of the incident is corroborated by others of the passengers. The conductor’s manner was somewhat gruff, and that of the woman as a person intimidated. There were from fifteen to twenty passengers on the car at the time, and there was a good deal of excitement in the car among the passengers caused by the- incidents respecting the difference between the conductor and Mrs. Amos. The occurrence took place about nine o’clock at night. It was very dark. Mrs. Amos and her son found a place to stay over night at the village near by and the next day went on to Alma by train, paying their fare. She w-as going to Alma to be treated for bronchitis. After this occurrence she was rendered worse, became nervous, being afflicted with nervous headaches and violent coughing spells. In general her health was impaired from some cause.

In fact the conductor did telegraph the general passenger agent’s office at Toledo, and in return that office telegraphed the Cincinnati, Hamilton & Dayton road asking if there was an error in issuing of the tickets. No reply was received, and the direction to the conductor followed.

The agent of the Norfolk & Western road at Ironton had authority to issue the tickets as they were issued, and in that respect represented the Cincinnati, Hamilton & Dayton road and the Ann Arbor. The same is true with respect to the Cincinnati, Hamilton & Dayton agent having authority to issue tickets over the Ann Arbor road.

From the foregoing array of facts certain conclusions seem to follow inevitably. The tickets issued by the agent of the Norfolk & Western road, who, as found, was also the agent of the Ann Arbor, abundantly show that the passengers had paid full fare for passage from Ironton to Alma. This ought to be clear to a person of ordinary intelligence, and ought to have been clear to the conductor, especially when there was added the full and reasonable explanation given by the woman herself. Taking the four tickets all together it was made clear that the only difficulty in the matter was caused by the carelessness and inexcusable blunder of the Cincinnati, Hamilton & Dayton agent at Cincinnati, acting also for the Ann Arbor Company, a blunder for which Mrs. Amos was in no way responsible. And even were the question presented one between the conductor and the passenger, where the somewhat rigid rule that, as between the conductor and the passenger the latter must produce a ticket apparently good on its face or pay fare, is applicable, it would seem that the conductor had in this instance made a palpable mistake. But the question presented by the record is not between the conductor and the passenger, but is between the Company itself and the passenger, for, when the conductor apprised the proper office of his dilemma and acted upon the instructions from that office, the responsibility was then upon the Company. Nor did the futile effort to get information from the company at whose ticket office the blunder was made relieve the Ann Arbor Company. The general passenger agent had nearly four hours in which to acquaint himself with any information or explanation possessed by the Cincinnati office, with telegraph and telephone lines at his command, and yet seems simply to have sent an inquiry by a telegraphic message. It was his duty to his own road to use due diligence in ascertaining the cause of the blunder, but it was his duty to the passenger as well as to his employer to act promptly and effectively to ascertain the facts and decide intelligently. He seems to have done neither. Sufficient facts were before him. They justified but one conclusion. He reached the opposite conclusion, and hence the trouble. Both tickets of the son, as well that issued to him at Cincinnati as the one issued at Ironton, in terms at the head of each showed that he was entitled to a first-class passage to Alma. The tickets issued to the mother, when taken together, would seem to indicate a like right of passage, especially when we apply the rule, well established we think, that in construing a contract of this character language of doubtful meaning should be taken in its strongest sense against the company. But, if any question remained as to that, the tender of fare from Ann Arbor to Alma by the mother fully relieved the ■situation of any doubt as to her, and as result it was thus clearly shown that both were entitled to be carried from Ann Arbor to Alma without farther payment of fare.

Some claim is made-that Mrs. Amos was herself guilty of negligence in not examining the tickets, ascertaining the blunders, and seeking correction. This objection lacks substance. At Cincinnati, where the blunders were committed, she had no opportunity; but aside from that it would not, we think, be reasonable to demand that a passenger on a railroad train especially a woman, shall at the peril of being ejected, first suspect that the ticket agent has blundered in the discharge of his duty, and then, still at her peril, study the ticket to ascertain whether or not, as matter of fact, the ticket issued to her is incorrect and insufficient to entitle her to passage to her destination. Passengers on railroad trains are not in general presumed to know the rules and regulations of the company made for the guidance of its conductors, and it cannot be regarded as negligence for a woman to fail to realize that a conductor might not be the proper person to correct a blunder made by a ticket agent of the road should she discover it. These long drawn out special tourist tickets are not simple. On the contrary they are involved. Each one of these tickets contained eleven printed paragraphs expressing conditions relating to passengers and to baggage, in fine type, surrounded on either side by names of the months of the year, and by figures giving dates to be punched out to conform to date of issue when needed. A mistake in judgment might easily happen in an effort to fully understand them, and a right to ride by a woman who has paid fare should not be made to depend upon a correct solution by her of a somewhat confusing puzzle. Mrs. Amos had done all that, under the circumstances, could reasonably be expected of her. She was, therefore, entitled to the benefit of the principle (N. Y., L. E. & W. Rd. Co. v. Winter, 143 U. S., 60) that “where a party does all that he is required to do under the terms of a contract into which he has entered, and is only prevented from reaping the benefit of such contract by the fault or wrongful act of the other party to it, the law gives him a remedy against the other party for such breach of contract.”

By the undisputed evidence, therefore, this party was entitled to recover damages, and it was not error for the court to so instruct the jury. And the expulsion being wrongful, and to some extent at least rough and forcible, the assault committed on a woman in the presence of a score of people, it was not error in the court to further instruct the jury that in addition to compensatory damages, they might, taking into account the circumstances, if they found the assault to have been wanton, malicious, or committed in a rude and insulting manner, evincing an intention to wound and injure plaintiff’s feelings, to bring her into contempt or disgrace, go farther and award punitive damages. The case made by plaintiff we think fully justified the judgment. If the evidence in the case does not show just such a condition as was provided for in the above charge it would be difficult to imagine a scene in a railroad train which would.

A number of points are made by counsel for plaintiff in error specially bearing upon the charge. All have been considered. We do not deem it necessary to review them in detail. As herein-before stated, we are of opinion that the charge was justified by the evidence, and find no error in the refusals to charge.

Several decisions of the supreme court of Michigan are called to our attention. The claim is made that the law of that state as thus declared, requires a reversal of this judgment. We do not think so. None of the decisions thus cited involves a question between the company and the passenger; all arose wholly between the conductor and the passenger, and the law of that court, as declared in these decisions, applies to such situations only. Nor are the facts in any of those cases parallel with the facts in this case. The case approaching nearest to it is Zagelmeyer v. Railroad, Co., 102 Mich., 214, where it is held that a passenger who either produces a ticket which, as between the conductor and himself, entitles him to passage, or stands ready to pay the fare legally demanded, can recover substantial damages for being ejected from the car on his refusal to pay an unauthorized demand. The case in the opinion is distinguished from various earlier Michigan cases cited because in such earlier cases the party had no ticket which, as between himself and the conductor, entitled him to ride, and in which there was no tender of legal fare. We think there is little comfort for plaintiff in error in the Michigan cases when analyzed and understood.

No useful purpose would be served by going more into detail as to the circumstances of the case or the assignments of error. All assignments are virtually disposed of by what precedes. We think the charge of the court was correct and the instructions requested properly refused. In short we find no error in the re'cord. The judgments below will be

Affirmed.

Davis, C. J., Shauck, Price, Johnson and Donahue, JJ., concur.


author: Davis, C. J. Spear, J.,

text:
    The State of Ohio v. Boone.

      Requirement that physicians and midwives certify certain facts— In act establishing bureau of vital statistics — pp O. L., 296 — Is unconstitutional and void.

    The requirement that physicians and midwives shall certify items numbered 5, 6, 7, 8, 9, 10, 11, 12, 13, IS, 16, 17 and 18, in section 14 of “An act to establish a bureau of vital statistics and to provide for the prompt and permanent registration of all births and deaths within the state of Ohio,” (99 O. L., 296), is an unwarranted and unreasonable exercise of police power; and for the reason that sections 13, 14, 17 and 21, of said act, require a certificate of all items mentioned in said section 14 and recognize no other certificate as complete and proper, each and all of said sections, so far as they apply to physicians and midwives, are unconstitutional and void.
    (No. 12846 —
    Decided January 16, 1912.)
    Error to the Circuit Court of Hardin county.
    On Rehearing.

      Mr. Timothy S. Hogan, attorney-general; Mr. Fred. H. Kirtley and Mr. James R. Stillings, prosecuting attorney, for plaintiff in error.

      Mr. George E. Crane, for defendant in error.
   Davis, C. J.

This case is fully reported with opinion in 84 Ohio St., 346. A motion for rehearing was entertained because of an uncertainty, which seemed to exist to some extent, as to the scope of the syllabus in the former report: There is no ambiguity in the opinion; but since, by a rule of this court, the syllabus must be confined to the points of law arising from the facts of the case and which have been determined by the court, and since the syllabus is the expression of all the concurring judges, doubt seems to have arisen whether the syllabus and the opinion were in harmony.

Whether a physician or midwife might or might not be required by a proper statute to report a birth at which he or she had attended, was not a point considered or decided; because it was not disputed and was expressly conceded by the defendant in error, as expressly stated in the opinion. But, although this much was conceded to be true, it was argued, and so held by the court, that paragraphs or items numbered 5, 6, 7, 8, 9, 10, 11, 12, 13, 15, 16, 17 and 18, in Section 14 of “An act to establish a bureau of vital statistics and to provide for the prompt and permanent registration of all births and deaths occurring within the state of Ohio” (99 O. L., 296), were an unwarranted and unreasonable exercise of police power ; and that these items are so interlaced and interwoven into the texture of Sections 13, 14, 17 and 21, of said act, as to render each entire section unconstitutional and void, so far as they relate to physicians and midwives, Section 13 making it the duty of the attending physician or midwife to file a certificate of birth giving all of the particulars required by the act, Section 14 for the same reason, Section 17 making it the duty of the state registrar to prepare blanks and issue detailed instructions to carry out the purposes of the act, and providing that no other blanks shall be used, and Section 21 making it a penal offense for neglect or refusal to file “a proper certificate,” the definition of a proper certificate being fixed by Sections 13, 14, and 17.

For the reason, therefore, that the objectionable items of Section 14 are expressly required by all of the sections mentioned above to be joined with those conceded to be sound, the court could not separate the former from the latter and declare part of the sections valid. The legislature may rectify its error by future enactment.

The judgment of the circuit court reversing the judgment of the court of common pleas is affirmed, on the ground that the demurrer to the indictment ought to have been sustained, and

Defendant discharged.

Shauck, Price, Johnson and Donahue, JJ., concur.

Spear, J.,

dissenting. I am in accord with that part of the majority opinion given upon the rehearing wherein it is held with emphasis, as was foreshadowed in the opinion given when the case was first reported, to the effect that the general assembly has power to require physicians to certify to the proper board such information respecting births and deaths as, speaking in general terms, will naturally come within the knowledge or observation of an attending physician. This upon the ground that the physician is licensed by the state, sections 1269 to 1295, General Code. This requirement is, therefore, not unreasonable, and it is hornbook knowledge that where special privileges are accorded by the state special duties in connection therewith may be exacted without awarding money compensation therefor.

But I dissent from the holding on the rehearing which will have the effect to destroy the act utterly. This judgment is put upon the ground that the provisions of the act which were within the power of the general assembly to enact are so interwoven with those admittedly invalid as to make the whole invalid. This is a holding that the general assembly would not have passed the portions of the act which it is now admitted that body had power to pass without including the provisions which are condemned. In other words, a hungry man presumably would reject a half a loaf unless he were offered a whole loaf. I. can find no such legislative purpose in the words or object of the act. The universal rule is that a part of a law may be unconstitutional while there is no such objection to the remaining parts, and in such case all of the law stands except the part which is unconstitutional. The use of the word “all” in section 13, and perhaps elsewhere in the act, purporting to require the physician to certify all the matters purporting to be required by the act generally is not controlling; nor should it create doubt as to other portions of the act. Necessarily and reasonably, the “all” should be held to mean all those matters which the general assembly has the power to require to be certified, and the “proper certificate” required to be filed by the provisions of section 21, would naturally mean such certificate as the board has legal power to require, its power in that respect being now defined by the judgment of the court.

This view of the act does not affect the defendant in the case. He was properly ordered discharged by this court. The discharge may well rest upon the ground that the evidence adduced at the trial was insufficient to justify a verdict and judgment against him.


author: Davis, C. J.

text:
    The State of Ohio v. Phillips.

      The common law rule — That neither husband nor wife can be prosecuted — For larceny of goods of either — Not abrogated by Sections 7995 to 8004, General Code.

    The common law rule that neither husband nor wife can be prosecuted for larceny of the goods of the other, is not abrogated by Sections 7995 to 8004, General Code, defining the rights and liabilities of husband and wife, nor by Section 12447, General Code, defining larceny. An intention of the legislature to abolish an established rule of the common law and to create a crime where none existed before, must clearly and unmistakably appear.
    (No. 13071 —
    Decided January 16, 1912.)
    Exceptions to the Court of Common Pleas of Lucas county.

      The defendant in error was indicted for larceny of seven hundred and sixty dollars from her husband. It appeared that the money was taken from a safe in their residence. The court of common pleas directed a verdict of not guilty, on. the ground that the indictment did not charge a crime, and this judgment was affirmed by the circuit court. The case came to this court on exceptions by the prosecuting attorney.

      Mr. Holland C. Webster, prosecuting attorney, and Mr. Roy R. Stuart, assistant prosecuting attorney, for the exceptions-.
    This court, in the case of Phillips et al. v. Graves et al., 20 Ohio St., 380, stated the common law with reference to the relation of husband and wife.
    In numerous other cases, this court has frequently declared the common law rule to be as stated in the foregoing case. Ramsdell v. Craighill, 9 Ohio, 199; Walden v. Walden’s Admr., 7 Ohio St., 31; Glidden, Murphin & Co. v. Taylor, 16 Ohio St., 517; Quigley v. Graham, 18 Ohio St., 45; Levi v. Earl, 30 Ohio St., 163.
    This rule was changed by the act of March 19, 1887, being now Sections 7995 to 8004, General Code.
    The only decision in this state upon this question that we have been able to find is the case of State v. Parker, 3 Dec. R., 551, in which it was held that it is not larceny, in the eyes of the law, for a husband to appropriate property belonging to his wife.

      But the opposite view was taken in other jurisdictions. Hunt v. State, 72 Ark., 241, 65 L. R. A., 71; Beasley v. State, 138 Ind., 552; State v. Jones, 132 N. Car., 1043, 61 L. R. A., 779.

      Mr. Paul J. Ragan, against the exceptions.
    This question has never yet been brought to the attention of this court, and, as stated in the brief submitted for the state, seems never to have been passed upon by any court in Ohio, except in one single instance. For this reason the authorities cited must be chosen from the holding of other courts. We have endeavored, however, to take them from the courts of those states whose marriage law is similar to our marriage law, and who have separate property acts similar to those in Ohio. Walker v. Reamy, 36 Pa. St., 410; Cole v. Van Riper, 44 Ill., 58; Thomas v. Thomas, 51 Ill., 165; Wells’ Separate Property of Women, 104.
   Davis, C. J.

This case presents the concrete question whether a wife can be prosecuted for larceny, when she has taken and converted to her own use personal property of her husband. The case is easily distinguishable from many of the cases cited in argument, in which there appear schemes of fraud or violence of which marriage is a part or to which it is an incident, or in which the wife of a husband goes away from the other with adulterous intent, the paramour assisting in the asportation and use of the goods of the defrauded spouse, or in which a third person, without adulterous intercourse or intent, assisted in appropriating and using the goods which were charged to have been stolen; because none of these elements are found in this record. The bill of exceptions tends to prove that the defendant in error, about three weeks after the alleged crime, admitted that she took the money from the safe and gave it or part of it to her mother, and that she and her husband then joined in a mortgage to secure the repayment of five hundred dollars of the amount taken to the brewery company which had become security for that amount when her husband borrowed it. The court of common pleas directed a verdict of not guilty, to which the prosecuting attorney excepted. This is the whole case as it appears of record.

The state concedes that by the common law the indictment would not be sufficient; but it is contended that, by virtue of Section 12447 of the General Code, “Whoever steals anything of value is guilty of larceny,” and also by virtue of the statutes defining the rights and liabilities of husband and wife, (Sections 7995 to 8004, General Code), the legal unity of husband and wife theretofore recognized as the foundation of the common law rule has been abrogated, so far at least as to make either spouse liable for larceny from the other.

We get very little aid in the solution of this phase of the question, from decisions in other states, because so much depends upon the legislation-peculiar to each state and its construction by the local courts. For example, in Arkansas, the constitution of 1874, Art. 9, § 7, provides as follows: “The real and personal property of any femme covert in this state, acquired either before or after marriage, whether by gift, grant, inheritance, devise or otherwise, shall, so long as she may choose, be and remain her separate estate and property, and may be devised, bequeathed or conveyed by her the same as if she were a femme sole; and the same shall not be subject to the debts of her husband.” The supreme court held that under that clause of the constitution a husband might be guilty of larceny of his wife’s personal property. Hunt v. State, 72 Ark., 241. Although that judgment was reached by a course of reasoning which does not seem to us to be at all conclusive, it must be conceded that it is the law of that jurisdiction. In Beasley v. The State, 138 Ind., 552, the court said: “The learned judge below held the indictment good upon the ground that the recent statutes give the wife exclusive control and authority over her personal property, and have greatly enlarged her personal rights as to the disposition thereof, making contracts and doing whatever a femme sole might do; and that the effect of such statutes is to sever the unity of person and community of property heretofore existing between husband and wife. There seems to be sound logic in this position.” It was accordingly held that under the statutes of that state the husband’s interest in his wife’s property is abolished, and he may be convicted of the larceny of her money.

On the contrary, it was held by the supreme court of Michigan, in Snyder v. People, 26 Mich., 106, in which case a husband was under indictment for burning his wife’s dwelling-house, that the statutes of that state for the protection of the rights of married women did not affect the marital unity of husband and wife and did not change the common law rule that such burning would not be arson. Cooley, J., in delivering the opinion of the court, said: “As regards her individual property, the law has done little more than to give legal rights and remedies to the wife, where before, by settlement or contract, she might have established corresponding equitable rights and remedies, and the unity of man and woman in the marriage relation is no more broken up by giving her a statutory ownership and control of property, than it would have been before the statute, by such family settlement as should give her the like ownership and control. At the common law, the power of independent action and judgment was in the husband alone; now it is in her also, for many purposes; but the authority in her to own and convey property, and to sue and be sued, is no more inconsistent with the marital unity, than the corresponding authority in him.” Similar views are expressed in Thomas v. Thomas, 51 Ill., 162; Walker v. Reamy, 36 Pa. St., 410; State v. Wincroft, 76 N. Car., 38; and State v. Matthews, 76 N. Car., 41.

Common law rules have usually been founded upon sound reason and considerations of public policy; and out of this fact has grown the safe maxim that statutes derogating from the common law should be strictly construed. Keeping this maxim in mind, we have found nothing in the statutes of Ohio, and nothing has been pointed out to us, which would justify a conclusion that the general assembly expressly or impliedly abrogated the common law rule that neither husband nor wife can be prosecuted for a larceny of the goods of the other; and much less an intention to do so. Indeed we doubt that any member of that body had in contemplation such a result when he voted for the statutes which protect the individual rights of married people. The legislature was contemplating the expressed purpose of the statutes, and that only. They were not at that time considering crimes and criminal procedure; and .surely they cannot be presumed to have intended a thing which they did not clearly express and which is fraught with such far-reaching and radical consequences to the law of the domestic relations, for the abrogation of the doctrine of the legal unity of husband and wife, when pushed to its logical conclusion, would not only create crimes where there were none before, but would also authorize a husband or wife to maintain civil actions for tort against the other, such as actions for personal injuries, assault, false imprisonment, or slander (15 Am. & Eng. Ency. Law, 2 ed., 857) thus multiplying a hundredfold the unhappy differences which have to be settled in the divorce courts. We cannot assume that the legislature intended this without very clear evidence of such an intention in the language of the statutes.

Since the foregoing was written we have come upon a recent opinion of the Supreme Court of the United States, Thompson v. Thompson, 218 U. S., 611, in which the court held that the common law relation between husband and wife was not so far modified by Section 1155 of the District of Columbia Code as to give to the wife a right of action to recover damages from her husband for an assault and battery committed by him upon her. The code section referred to authorizes married women “to sue separately for the recovery, security or protection of their property, and for torts committed against them, as fully and freely as if they were unmarried.” The court’s construction of this statute is that it was not intended to give to a married woman a right of action against her husband, but to allow the wife to maintain in her own name such actions in tort as at common law must be brought jointly by the husband and wife; and it was remarked within the power of the legislature to make this by Justice Day, in the opinion: “Conceding it to be alteration in the law, if it saw fit to do so, nevertheless such radical and far-reaching changes should only be wrought by language so clear and plain as to be unmistakable evidence of the legislative intention.”

Morever, the unity of husband and wife, as recognized in the common law, is founded not merely on a community of goods, but upon the recognized obligation of both to the family and to society. The unit of society is not the individual but the family; and whatever tends to undermine the family, by the irrepealable laws of nature will crumble and destroy the foundations of society and the state. So that the peace and sanctity of the home and family are the ultimate reason for the common law rule. We do not think that we can safely hold by mere inference, that the legislature has taken such a long step in the direction of destructive legislation.

The foregoing reasoning applies also to Section 12447, General Code.

Exceptions overruled.

Spear, Shaucic, Price, Johnson and Donahue, JJ,, concur.


author: Per Curiam.

text:
    Hixon v. Vail.

      Summons in error — Returned without service — No service in sixty days — Nor within four months after judgment — Proceedings in error properly dismissed.

    Where a summons in error was returned without service and no service was made in the proceeding in error for more than sixty days thereafter, nor for more than four months after entry of the judgment or final order complained of, such proceeding in error was properly dismissed.
    (No. 12868 —
    Decided January 16, 1912.)
    Error to the Circuit Court of Allen county.
    On the 16th day of June, 1910, the defendant in error recovered in the court of common pleas a judgment against the plaintiff in error. To reverse this judgment the plaintiff in error, on the 6th day of August, 1910, filed in the circuit court a petition in error and his precipe for a summons in error returnable according to law. On the same day summons in error was issued and made returnable August 15, 1910. On the last named date the summons in error was returned by the sheriff of Allen county with indorsement as follows: “Received this writ on the 6th day of August A. D. 1910 and on the 15th day of August A. D. 1910, I returned this writ not served as Michael R. Vail could not be found in my bailiwick.”
    On the 10th day of November, 1910, the attorneys for the defendant in error filed in the circuit court a motion to dismiss the petition in error, for the reason that the proceeding in error was not commenced within the time required by law. On the 14th day of November 1910, the following additional indorsement was placed by the sheriff on the summons which had been returned on August 15, 1910: “And on the 14th day of November, 1910, I served this writ by handing a true copy thereof with all indorsements thereon to Bernard O’Connor and Harry O’Connor, partners as O’Connor & O’Connor, attorneys of record for Michael R. Vail, defendant in error.” After-wards on the 14th day of November, 1910, another summons in error was issued and returned on the 15th day of November, 1910, as having been served on the attorneys of record for the defendant in error on the 14th day of November 1910. On December 21, 1910, the circuit court dismissed the petition in error; and to reverse that judgment of dismissal this proceeding is prosecuted.

      Mr. B. J. Brotherton and Mr. W. H. Leete, for plaintiff in error.

      Mr. A. F. Lindemann and Messrs. O’Connor & O’Connor, for defendant in error.
   Per Curiam.

The second summons and the service thereunder were too late to be of any avail to the plaintiff in error as a commencement of the proceeding in error. There was no service under the first summons, during the life of the writ; and the pretended service after the writ was returned by the sheriff was more than sixty days thereafter and more than four months from the entry of the judgment in the court of common pleas. Sections 11231 and 12270, General Code. Nor does it appear that there was a diligent effort to obtain service followed by service within sixty days.

The judgment of the circuit is

Affirmed.

Davis, C. J., Spear, Shauck, Price, Johnson and Donahue, JJ,, concur.


author: Donahue, J.

text:
    Flandermeyer v. Cooper.

      Husband or wife — May maintain action for damages — Against anyone wrongfully interfering — With marriage relationship— Wife may sue dmggist for selling morphine to husband, when — Malice towards injured party not necessary, when.

    1. Husband and wife are entitled to the affection, society, cooperation and aid of each other in every conjugal relation, and either may maintain an action for damages against any one who wrongfully and maliciously interferes with the marital relationship and thereby deprives one of the society, affection and consortium o.f the other.
    2, One who with knowledge that a husband by the constant and continued use of morphine has become so weakened in body ' and mind that he is unable to resist his cravings for the drug, and who after the repeated protests of the wife continues to sell morphine to the husband until by the use thereof his mind becomes so impaired and destroyed that it is necessary to confine him in an insane aslyum, is liable to the wife for damages for her loss of consortium.
    3. Hatred, ill will or actual malice towards the injured party is not a necessary ingredient ■ of legal malice as applied to torts, nor is it necessary that the act complained of proceed from a spiteful, malignant or revengeful disposition. If it be wrongful, unlawful and intentional and the natural and probable result of the act is to accomplish the injury complained of, malice is implied.
    (No. 12231 —
    Decided February 6, 1912.)
    Error to the Circuit Court of Cuyahoga county.
    On the ,12th day of October, 1907, Lillie M. Cooper filed her amended petition in the court of common pleas of Cuyahoga county against Henry H. Flandermeyer, averring in substance, that she was the wife of Charles A. Cooper, living and consorting with him as her husband, as the defendant well knew, until the peace and welfare of her home was destroyed by the unlawful, wilful, negligent, malicious and wrongful acts of the defendant in this: That about the month of June, 1905, the defendant was a pharmacist, the proprietor of and conducting a drug store in the city of Cleveland; that with the full knowledge of the poisonous effects of morphine to create a growing desire and craving for additional quantities thereof, and without complying with the statutes of the state of Ohio, and without due inquiry as to whether the said Charles A. Cooper was aware of the insidious and dangerous character of said morphine, or whether said Cooper was then in fact practically ignorant of the effect of morphine, well knowing that this plaintiff was his wife, and that she was using every available means to cure and counteract her husband’s act of using morphine, did knowingly, wrongfully and unlawfully sell and administer morphine to the said Charles A. Cooper, although she frequently protested to the defendant against his further selling and administering such morphine, and expressly warned and prohibited said defendant from continuing said sales, or administrations of morphine to her husband, well knowing that the constant use of this drug had created an irresistible appetite on the part of Cooper, well knowing that said drug was not being used for medicinal purposes, but through and on account of the craving that had fastened itself upon him by long use thereof, whereby he was becoming, and had become, a morphine fiend, and was thereby wrecking his mind and body; that said defendant notwithstanding the protests and warning of plaintiff continued to sell and administer quantities of morphine to Charles A. Cooper, said sales becoming more frequent until they occurred almost every day, and being in bulk quantities less than the minimum original package of one-eighth ounce, as provided by law, so that said Cooper became a slave to the morphine habit, and that he was thereby deprived of moral sensibility, and was unfitted and incapable to give the affection, society, companionship and consortium which he had formerly given and which were due to plaintiff, as his wife, and thereby knowingly, wilfully and wrongfully depriving plaintiff of the affection, society, companionship and consortium of her husband, and that finally in consequence of defendant’s unlawful and wilful act, the said Charles A. Cooper, on the 16th day of June, 1906, was committed to an asylum and there detained for about one year, and alleged that she had been damaged by reason of the defendant’s unlawful and wilful act in the sum of two thousand dollars, for which she prayed damages. To this amended petition the defendant filed a general demurrer,' which was overruled by the court and exceptions noted.
    The defendant in his amended answer, filed April 13, 1909, admitted that the plaintiff was the wife of Charles A. Cooper, and was his wife in June, 1905, and prior thereto. He admits that he was a pharmacist, duly registered; that he was the proprietor and conducted a drug store in Cleveland, Ohio, and denied every other allegation, averment and statement in the amended petition.
    For a second defense he averred that Charles A. Cooper presented himself at the defendant’s pharmacy and represented that he had theretofore become addicted to the habitual use of morphine; that he was suffering from the toxic effect of the same to such an extent that he was unable to work and support his family, and otherwise perform his marital obligations to his wife and family, and asked to purchase morphine for the relief of his immediate sufferings, and for relief of the necessities of- his family; that the defendant always warned him against the dangers attendant upon the use of morphine, and believing and relying upon his representations as true, and believing that the same was to be used medicinally for the relief of the suffering of Cooper, and to enable him to support his wife and family and in a desire to befriend him, and for no other cause, reason or purpose, did sell Cooper some morphine, but never unlawfully.
    He further avers that he is informed and believes that said morphine so purchased by him was taken by Cooper, used medicinally and was beneficial to him.
    It is further averred that the plaintiff knew of said sale and acquiesced in the beneficent acts of this defendant in making them and accepted the good results flowing therefrom; that said sales were made in the usual course of trade and exercise of due care. He denied all malice, negligence and all unlawful and wrongful intention on defendant’s part, and denied that he ever administered any morphine to Cooper, and prays that the- action may be dismissed.
    The plaintiff by way of reply to this answer denied that Cooper represented he was suffering from toxic effects of morphine to such an extent that he was unable to work or support his family, or otherwise perform his marital obligations to his family; denies that he asked to purchase morphine for the relief of the necessities of his family, and denies that the defendant warned him of the dangers attendant upon the use of morphine; denies that the defendant believes that the morphine so sold was to be used medicinally for the relief of the sufferings of Cooper, or was sold with intent to befriend his family; or that said morphine was used medicinally and was beneficial to Cooper; denies that she acquiesced in the act of defendant in the sale of morphine to Cooper, and that said sales were made in the usual course of trade and in the exercise of due care.
    Trial was had upon the issues so joined and the jury returned a verdict for the plaintiff in the sum of $500. With its general verdict the jury at the request of the defendant returned the following answers to interrogatories:
    “1. At the time of the sales of morphine to Charles A. Cooper by the defendant from June, 1905, to June, 1906, was said defendant, Henry H. Flandermeyer, actuated by any feeling of hatred or actual malice toward the plaintiff in this case, Lillie M. Cooper? No. 2. Was there a real or apparent need for morphine medicinally on the part of Charles A. Cooper, at the various times at which the defendant and his clerks sold him morphine? No. 3. Was Charles A. Cooper addicted to the habitual use of morphine prior to 1905? Yes. 4. Was Charles A. Cooper addicted to the use of morphine habitually prior to any purchases from defendant, and while living with his wife, the plaintiff? Yes. 5. Was Charles A. Cooper cured of the morphine habit at the end of the Dr. Peck treatment in 1905? Yes. 6. Was the mere sale of morphine to Charles A. Cooper by the defendant, without the additional act of the said Charles A. Cooper after he had become possessed of said morphine, in introducing it into his system, the cause of any injury to the plaintiff, Lillie M. Cooper? No. 7. Did the defendant or any of his clerks sell any morphine to the plaintiffs husband, Charles A. Cooper, after plaintiff had notified them not to do so? If so, when were said sales made? Yes. Between June, 1905, and June, 1906. 8. Was the act of Charles A. Cooper in introducing the morphine sold to him by the defendant into his system the independent act of said Charles A. Cooper alone? Yes. 9. Did the defendant or any of his clerks ever administer any morphine to said Charles A. Cooper? No.”
    A motion for judgment for defendant on the special findings was overruled, as was also a motion for a new trial, and judgment entered upon the verdict. Error was prosecuted to the circuit court of Cujrahoga County, and that court affirmed the judgment of the common pleas court. This proceeding in error is brought in this court to reverse the judgment of both the lower courts.

      Mr. Alexander H. Martin, for plaintiff in. error.
    Cooper, it is conceded, used the morphine hypodermically himself, but if the morphine had been given or administered directly to Cooper by Flandermeyer, maliciously, and had caused his death, plaintiff’s consortium would have been injured and entirely destroyed, and still she could not have remedy against Flandermeyer except by virtue of Section 6134, Revised Statutes, permitting actions by dependents for death by wrongful act. So if Cooper had been rendered drunk by and because of intoxicating liquor sold him by Flandermeyer, and plaintiff had been injured in her means of support, her consortium, or otherwise, because of said sale and intoxication — she could not recover against Flandermeyer except by virtue of our enabling statute and according to the terms of said statute. Sections 4356 to 4364, Revised Statutes; Davis v. Justice, 31 Ohio St., 359; Schneider v. Hosier, 21 Ohio St., 113; Kirchner v. Myers, 35 Ohio St., 85.
    The true policy of the law in this state is that no recovery can be had for an indirect injury, at the common law. Ware v. Brown, 4 O. F. D., 146; Wells v. Cook, 16 Ohio St., 72.
    To support an action for alienating a husband’s or a wife’s affections it must be established that the defendant is the enticer. Mere proof of abandonment and that the husband or wife maintained improper relations with the defendant is not sufficient. 21 Cyc., 1621; Buchanan v. Lewis, 23 N. Y. App., 542, 48 N. Y. Supp., 732; Churchill v. Lewis, 17 Abb. N. C., 226; 15 Am. & Eng. Ency. Law (1 ed.), 865; Holtz v. Dick, 42 Ohio St., 23; Scott v. O’Brien, 110 S. W. Rep., 260; 3 Elliott on Evidence, Sec. 1643; Waldron v. Waldron, 45 Fed. Rep., 315.
    The independent, voluntary act of Cooper, the husband, a free moral agent, was the cause of the alleged injury to plaintiff, and not any act of Flandermeyer. Therefore, there is no liability resting on Flandermeyer. Ronker v. St. John, 21 C. C., 39.

      Mr. John A. Nieding and Mr. A. Frank Counts, for defendant in error.
    A wife may maintain an action for the loss of the society, companionship and consortium of her husband against one who wrongfully and maliciottsly interferes with the marital relationship and deprives her of such society, companionship and consortium. Westlake v. Westlake, 34 Ohio St., 621; Clow v. Chapman, 26 L. R. A., 412; Bennett v. Bennett, 6 L. R. A., 553.
    Defendant’s act in the sales of morphine to Cooper was a direct interference with the marriage relationship. Hoard v. Peck, 56 Barb., 206; Holleman v. Harward, 119 N. Car., 150, 34 L. R. A., 806.
    The doctrine of intervening agency has no application to the present case. Defendant maintains that he is not liable because the cause of the injury to plaintiff’s rights was a voluntary act of Cooper, a free moral agent. We maintain that defendant’s theory is not applicable to wrongful and malicious acts as in this case. Defendant sold this drug, knowing it was used and to be used by Cooper to satisfy the demands of a habit. Flandermeyer v. Cooper, 12 C. C., N. S., 369; Hart v. Knapp, 76 Conn., 135, 55 Atl. Rep., 1021.
    The acts of defendant were malicious as malice is defined in Brown v. Brown, 125 N. Car., 19.
   Donahue, J.

The primary and most important question presented by this record is whether a wife has a common law right of action against one who wrongfully and maliciously interferes with the marital relationship and deprives her of the society, companionship and consortium of her husband. In the absence of a statute authorizing such recovery her right to maintain this action rests wholly on the common law, and if the common law does not afford her a right of action then she can not maintain this suit, and the demurrer to the petition should have been sustained.

It is very clear that originally the common law recognized no such right in the -wife. By the primitive law, the only member of the family deemed to be harmed by an unjustifiable disturbance of the family relation was the head of the family. Blackstone in his Commentaries, volume 3, pages 142-143, says that these torts directed against the peace and tranquillity of domestic relations are actionable only when committed against the husband. In the case of Lynch v. Knight, 9 H. L., 577, Lord Wensleydale held that: “No recovery could be had without joining the husband in the suit, who himself must receive the money which would not advance the wife’s remedy, and to allow her to recover in such an action would involve the absurdity that the husband might also sue for such a cause.”

It must be remembered, however, that this interpretation of the common law, with reference to the wife’s right to maintain an action of this character, obtained upon the theory that the wife’s personality merged in that of her husband’s, and that she was not then entitled to hold property separate and apart from her husband, and not authorized to bring suit in her own name. Now the legal status of the wife has been changed by legislation. Her legal personality is no longer merged in that of her husband. By force of the several statutes in this state in reference thereto, a husband has no longer any dominion over the separate property of his wife, and she may maintain an action in her own name, without joining her husband in the suit. The right of action growing out of an injury to her personal rights is her separate property for which she may maintain an action in her own name, The right of the wife to the consortium of the husband is one of her personal rights. It therefore follows that the principle of the common law which allowed a right of action to the husband for the invasion of this right, now, under the changed condition of affairs and in view of the present legal status of the wife, applies to her equally with the husband.

It is said by Burdick in his Law of Torts, at page 276, that: “With this change in her legal status, came naturally a change in the judicial conception of her marital wrongs. As she could maintain an action in her own name, and damages recovered would be her sole and separate property, one of the chief objections urged by Lord Wensleydale disappeared. As the law now recognized her legal equality with her husband, Blackstone’s reasoning based upon the superiority of one party and the inferiority of the other party to the marital relation, had no longer the foundation of even a fiction.”

A statutory right can not change except by action of the law-making power of a state. But it is the boast of the common law that: “Its flexibility permits its ready adaptability to the changing nature of human affairs.” So that whenever either by the growth or development of society or by the statutory change of the legal status of any individual he is brought within the principles of the common' law, then it will afford to him the same relief that it has theretofore afforded to others coming within the reason of its rules. If the wrongs of the wife are the same in principle as the wrongs of the husband, there is now no reason why the common law should withhold from her the remedies it affords to the husband.

Hale on Torts on page 278, says: “In natural justice, no reason exists why the right of the wife to maintain an action against the seducer of her husband should not be co-extensive with his right of action against her seducer. The weight of authorities and the tendency of the legislation strongly incline to the latter opinion.”

1 Cooley on Torts (3 ed.), page 477, says: “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. * * * The gist of the action is the loss of consortium, which includes the husband’s society, affection and aid. The wife may have the action though she continues to live with her husband, and it is held that she may maintain it after a divorce from him.”

This question, however, is fully settled in this state in the case of Westlake v. Westlake, 34 Ohio St., 621. The first paragraph of the syllabus is as follows: “A wife may maintain an action for the loss of the society and companionship of her husband, against one who wrongfully induces and procures her husband to abandon or send her away.” In the opinion on page 627, Gilmore, J., says: “If, in this state, the common law dominion of the husband over the property and personal rights of the wife has been taken away from him and conferred upon her, and remedies in accordance with the spirit of the civil law have been expressly given to the wife for the redress of injuries to her person, property, and personal rights, all of which I hope to show has been done, then it must follow that she may maintain an action in her own name for the loss of the consortium of her husband against one who wrongfully deprives her of it, unless the consortium of her- husband is not one of her personal rights. * * * Under our legislation, the benefit which the wife has in the consortium of the husband is equal to that which the husband has in the consortium of the wife. If, at common law, the husband could maintain an action for the loss of the consortium of the wife, I can see no reason why, under our law, the wife can not maintain an action for the loss of the consortium of the husband. * * * Each acquires a personal as well as legal right to the conjugal society of the other, for the loss of which either may sue separately.”

There can be no reasonable contention but that the wife suffers the same injury from the loss of consortium as the husband suffers from that cause. His right is not greater. than hers. Each is entitled to the society and affection of the other. The rights of both spring from the marriage contract and in the very nature of things must be mutual, and while this was always true of the marriage relation, yet there was a time in the history of our jurisprudence when the legal status of the wife was such that she could not, at common law, maintain an action of this character. Now her legal status is the same as that of her husband. She has the same right to the control of her separate property, the same right to sue in her own name and in a word, is in the full enjoyment of every right that her husband enjoys, so that she comes clearly within the principles of the common law that allow a right of action by the husband for damages for the loss of the consortium of his wife. Either we must hold that the common law is fixed, unchangeable and immutable, that it possesses no such flexibility as will permit its ready adaptability to changing conditions of human affairs, or that when every reason and every theory for denying the wife the same rights as the husband, has entirely disappeared from our jurisprudence, that she is now equally entitled with her husband to every remedy that the common law affords, and we have no hesitation in adopting the latter view.

It is insisted, however, that neither husband nor wife would have a right of action under the facts and circumstances of this case, and our attention is called to the fact that an enabling statute was necessary in order to permit a wife to recover damages to means of support by reason of intoxication caused by sales of liquor to the husband. This, however, is not a similar case. This is not an action for damages for loss of support, or loss of the earning capacity of the husband, but is wholly an action for damages for loss of consortium. Consortium is defined to be, the conjugal fellowship of husband and wife, and the right of each to the company, co-operation and aid of the other in every conjugal relation. Bigaouette v. Paulet, 134 Mass., 123.

This right is invaded whenever a third person through machination, enticement, seduction, or other wrongful, intentional and malicious interference with the marriage relation deprives the husband or wife of the consortium of the other.

The remedy for an invasion of these rights is not in the nature of the action for damages to means of support provided by the statutes relating to the sale of intoxicating liquors. It is said by Tiffany on Persons and Domestic Relations (2 ed.), page 80: “Whatever may have been the principle, originally, upon which this class of actions was maintained, it is certain that the weight of modern authority bases the action on the loss of consortium. * * * The suit is not regarded in the nature of an action by a master for the loss of the services of his servant, and it is not necessary that there should be any pecuniary loss whatever.”

No enabling statute was necessary to authorize a husband to maintain an action for the loss of consortium, and if we.are right in our conclusion that the wife is now equally entitled to maintain this action this contention of the plaintiff in error is completely answered.

The further claim is made by counsel for plaintiff in error that to sustain an action for injury to one’s consortium', the alleged injury must be the result of a force exerted directly upon the marriage relation for the purpose of injuring the plaintiff’s consortium, and the act of the consort responding to that force must not be voluntary, citing Holtz v. Dick, 42 Ohio St., 23. In that case this court declared that: “Where damages are asked for the alienation of affection each case must stand on its own facts.” If the proposition that “the act of the consort responding to that force must not be voluntary” were to be adopted as an arbitrary rule of law in this state controlling each and every case, then few or no such actions as this could be maintained. In the case of Bigaouette v. Paulet, supra, the court held that: “A husband may maintain an action for the loss of the consortium of his wife against the person who has criminal conversation with her, whether such conversation is with or without her consent and although the act caused no actual loss of her services to him.”

The case of Hart v. Knapp, 76 Conn., 135, was a suit by the wife against another woman for the alienating of her husband’s affection by acts of illicit intercourse. In that case the claim was made by the defendant that the wrong was not her wrong, but that of the husband; that her misconduct was induced by the persuasion of plaintiff’s husband, but the court disposes of this contention in this language: “In what she did with the husband, she did with full knowledge that it was wrongful and that it would, as the plaintiff claims it did, result in harm to the plaintiff. The gist of the advice set up in the requests is that the defendant did a great wrong by the persuasion of the husband. We know of no rule of law, civil or criminal, that absolves her .from liability for such wrong because of such persuasion.”

It is claimed that the selling of this drug to Cooper was not the proximate cause .of the damages to plaintiff, but that the independent act of Cooper in injecting this morphine into his system was the proximate cause producing the injury complained- of. The jury in its answer to the interrogatories found that neither the defendant nor any of his clerks administered any morphine to Cooper, and that the morphine sold by defendant to Cooper was introduced into Cooper’s system by the independent act of Charles A. Cooper alone. These are, undoubtedly, the physical facts, but they are not all the facts upon which the defendant’s liability to the wife depends.

The record discloses that noth withstanding Cooper had been a victim of the morphine habit for many years, that in the year 1905 he was completely cured of this habit and the jury so finds in its answer to the interrogatories propounded. The wife, however, realizing that because of his former experiences with this drug he would be weaker than the ordinary-man who had never been enslaved by its use, called personally at defendant’s place of business, explained to him the fact, requested him not to sell any morphine to her husband, and according to her testimony' defendant told her that she could not prevent him making such sales if her husband desired to purchase the same. The jury found in its answer to the interrogatories that the defendant continued to sell morphine to Charles A. Cooper after the plaintiff had notified him not to do so. It is true that the sale of morphine is lawful in this state, but it does not necessarily follow that every sale of morphine may be a legal one. The general assembly of this state has by statute provided certain restrictions and imposed upon the seller certain duties in reference to this and kindred poisons, and while the right of the wife to maintain this action does not rest upon these statutes, yet if by reason thereof the sale to her husband was unlawful and resulted in depriving her of the consortium of her husband, the case would present every element necessary to a .recovery, but plaintiff’s rights under the facts and circumstances of this case rest upon a broader foundation than the violation of these statutes, for if in the making of these sales these statutes had been observed to the very letter, the sale might nevertheless be wrongful, and the defendant responsible to the plaintiff for the injuries complained of in her petition.

If it be conceded that after Cooper became cured of the habit of using morphine he possessed sufficient intelligence and discretion to control his own actions and safeguard his own welfare, and that under these conditions the defendant had a legal right to disregard the appeal of the wife and to sell morphine to the husband upon the theory that the independent act of the husband of injecting it into his veins was the proximate cause of the injury complained of, yet the evidence is very clear that there came a time in the history of these sales when Cooper was no longer a free agent capable of controlling his own conduct and capable of exercising an independent judgment in reference to the use of this drug, but on the contrary his intellect had become so weakened and infirm that his power of resisting his craving therefor was entirely destroyed, and he became merely the instrument, or the conduit through which this treacherous poison was transferred from the druggist’s hands into his own system. We are not concerned with the moral wrong of one who turns a deaf ear to the appeals of a wife trying to save her husband from destruction and for greed of gain sells to that husband a drug that is sure to spell his mental and physical ruin, rather are we concerned with the legal aspect of the claim that it is the right of an individual to control his personal affairs regardless of consequences to others. The underlying purpose of our whole social compact is to prevent that very thing, and the principle is as old as the law itself, that every person must control his own conduct and his own property so as to do as little injury as possible to his fellow. From the facts found by the jury the defendant must .have known the growing imbecility of Cooper and the gradual impairment of his power of resistance to the use of this drug. He must have known that Cooper had reached that stage in his course of mental and physical destruction that just so sure as he sold him the poison, Cooper would inject it into his veins. In view of this condition of affairs any warning to Cooper of the dangerous qualities of the drug would be but an absurd attempt to evade responsibility for his own wrongful act.

As well might he intentionally detach a heavy weight from its support on high, that in falling would necessarily strike and injure another, and then say it was not my act in detaching this weight, but it was the force of gravity that caused it to fall to earth, and its falling was the proximate cause of the injury. Individuals must be held to have contemplated the natural and probable result of their own acts purposely and intentionally committed, and it would be just as reasonable to say that due' regard for the rights of others would not require the individual in the ordering' of his own affairs to take into account the force of gravity, as to say that one, who sells morphine to a person known by the seller to be a helpless victim of this drug, is not required to contemplate the natural and probable result of the use the unfortunate purchaser is sure to make of it.

In the case of Wells v. Cook, 16 Ohio St., 72, this court declared that: “The influences of human conduct, good or bad, are far-reaching, and are often seen and felt in consequences exceedingly remote, but uncertain and complicated. It is simply impossible that municipal law should take cognizance of all these consequences.’’ But in this case the consequences are not exceedingly remote. They are the natural and necessary consequences that follow from the defendant’s total disregard not only of his moral but his legal duty to his, fellow-man.

In the case of Holleman v. Harward, 119 N. Car., 150, it was held that: “The sale of laudanum as a beverage to a married woman, knowing that it is destroying her mind and, body and causing loss to her husband, when continued after his repeated warnings and protest, renders the seller liable to him for the damages which he sustains on account of the loss of her services.” In that case it was argued on behalf of the defendant that there - was no legal obligation resting upon him not to sell the drug, nor upon the wife not to use it; that the husband could not prevent his wife from buying and using it; that the duty of the wife to give to her husband her love and companionship was a moral duty, but that this moral duty could not be enforced by any power of the law. The court answered this contention in the' following language: “Notwithstanding the claim of the defendants, we think this action rests upon a principle —a principle not new, but,one sound and consistent. The principle is this: ‘Whoever does an injury to another is liable in damages to the extent of that injury. It matters not, whether the injury is to the property, or the person, or the rights, or the reputation, of another.’ * * * The defendants owed to plaintiff the legal duty not to sell to his wife opium in the form of large quantities of laudanum as a beverage, knowing that she was, by using them, destroying her mind and’ body, and thereby causing loss to the husband.”

In the case of Hoard v. Peck, 56 Barb., 202, it was held that the husband could maintain a right of action for damages against a druggist for selling laudanum to his wife to be used by her as a beverage, in consequence of which use by the wife she became sick and emaciated and her mind was affected so that she was unable to perform her duties as a wife, and her affection became alienated from the husband and he lost her society and was compelled to expend money in medical and other attendance upon her. ■ In that case the claim was made by the defendant that the selling of laudanum is a legal business, and that the husband could have no right of action for damages for such sale, but the court held that although there was no statute in the state of New York prohibiting the selling of laudanum, either as a beverage or for any other purpose, that it did not necessarily follow that every sale of it, in all cases is legal, but on the contrary that its lawfulness or unlawfulness depends on the circumstances of the sale, and the use and purposes to which it is applied. It was further held in that case that it was no defense to the action “that it was her hand that held the potion to her lips; that the druggist by the act of handing it to her for that purpose is as much responsible for the consequences as though he assisted her directly in pouring it down her throat. * * * If one furnishes the means, with the knowledge that it is to be unlawfully used, assenting to such use, he is answerable for the consequences, if the design is carried out.”

The jury in its answer to interrogatories propounded by the defendant found that the defendant was not actuated by any feeling of hatred or actual malice towards the plaintiff. That might be true in every action for damages for loss of consortium, and is probably true in every case where loss of consortium is accomplished by seduction or alienation of affection, but hatred and ill will of the injured person is not necessarily an ingredient of legal malice. If the conduct of the defendant was intentional and wrongful and without any just cause or excuse, malice would be implied. “The term malice, as applied to torts, does not necessarily mean that which must proceed from a spiteful, malignant or revengeful disposition, but a conduct injurious to another, though proceeding from an ill-regulated mind, not sufficiently cautious before it occasions an injury to another. 11 Serg. & R., 39, 40.” This definition fully comprises all the elements of malice as applied to torts, and was adopted by this court in the case of Westlake v. Westlake, supra.

The jury upon the issues joined by the pleadings returned a general verdict in favor of the plaintiff. There is nothing in the special findings of the jury that conflicts with this general verdict. Therefore, the motion of the defendant for judgment upon the special findings was properly overruled.

The judgment of the circuit court is affirmed.

Judgment affirmed.

Spear, Price and Johnson, JJ., concur.