nominal damages in such an action.12 This rule of law would seem to be unsound, for, from the very definition of the action for deceit, "representation, falsity, scienter, deception, and injury",13 all are essential to constitute the cause of action. "Damage is of the essence of the action of deceit; an essential element to the right of action, and not merely a consequence flowing from it".14 That damages have been suffered constitutes an allegation necessary to establish a cause of action for deceit. The right which a plaintiff declares on in such an action is not a right not to be deceived, but a right not to be deceived to his damage.15 The essentials of the action are that both fraud and damage must concur, and fraud without damage or damage without fraud will not found an action.16 Pecuniary loss to the deceived party is absolutely necessary to the maintenance of the action. Fraudulent misrepresentation alone does not warrant the recovery of damages." The term actual damage means the amount assessed as the equivalent of an actually proved loss, however small. 18 The courts have sometimes spoken of small but real actual damage as nominal damage. But the two conceptions are entirely distinct. Nominal damages really indicate that no actual damages have been sustained, but a trifling sum is awarded to a plaintiff in an action, where there is no substantial loss or injury to be compensated, but still the law recognizes a technical invasion of his rights or a breach of the defendant's duty.19 Small damages awarded as compensation for an actually proved but slight loss are not nominal damages, though the amount assessed may be trifling.20 When, therefore, it is said that a plaintiff can recover nominal damages, the meaning is, not that he can recover where there is actual damage to a very small amount, but that he can recover if there is no actual damage at all. In the class of cases under discussion, can the plaintiff recover in absence of any actual damage? It would seem not, for the plaintiff shows no invasion of his right unless he proves some damage. In the instances where a recovery of nominal damages has been allowed, although the courts have spoken of the damage as nominal, the decision should be regarded as erroneous, unless the court can be understood as using the expression "nominal" in the improper sense of actual damage to a very small amount.2 This would seem to be particularly true in the case of Allaire v. Whitney, 22 for in that case the court states that "the time of the injured party has been consumed in doing a vain thing, and time is money." Therefore, it would seem as though small but 21 121 Sedgwick, Damages (9th ed.), 174; 1 Sutherland, Damages (4th ed.), 38. 13 Arthur v. Griswold, 55 N. Y. 400 (1874). 14Alden v. Wright, 47 Minn. 225, 228 (1891); accord, Moore v. Beakley, 183 S. W. 380 (1916). 15 Meyer v. Amidon, 45 N. Y. 169 (1871); Taylor v. Guest, 58 N. Y. 262 (1874); Urtz v. N. Y. C. & H. R. R. R. Co., supra, note 5. 10Pasley v. Freeman, 3 Term. Rep. (Eng.) 51 (1788); Ettinger v. Weil, 184 N. Y. 179 (1906). 17Ansbacher v. Pfeiffer, 13 N. Y. Supp. 418 (1891); Brown v. Blunt, 72 Me. 415 (1881); Freemen v. Venner, 120 Mass. 424 (1876). actual damages should be given, but the rule of law laid down in the case is that "actual damage is not necessary to an action of deceit.' The Allaire case has been used as an authority by text writers for saying that nominal damages may be recovered in an action for deceit.23 Even in recent New York cases the Allaire case has been used as an authority for giving nominal damages in deceit actions with no other reason than a statement that "in the absence of proof of actual damages, at least nominal damages are to be presumed."'24 As the New York courts have shown their intention of following the rule of the United States Supreme Court, there seems to be no doubt but that they should go further and reverse the decision rendered in Slingerland r. Bennett, 25 which lays down the principle that the expenses of litigation incurred in a suit caused by the defendant's fraudulent misrepresentations are not the proximate result or the natural consequences of the fraud, and, therefore, not a proper item of the damage in the suit against the defendant. The better law is stated with admirable brevity in Trenchard v. Kells,26 where it was decided that the damages may also include outlays legitimately attributable to the fraud.27 This certainly should include, as an immediate consequence of the defendant's action, all direct pecuniary losses of the plaintiff such as the expenses of the litigation caused by the defendant. R. Alexander McClelland, '21. Domestic Relations: Effect of Married Women's Enabling Acts upon the Wife's Actions in Tort.-A construction by the courts of the married women's enabling acts as affecting the wife's actions in tort was involved in two recent cases, Bernhardt v. Perry, 208 S. W. (Mo.) 462 (1918), and Johnson v. Johnson, 77 So. (Ala.) 335 (1917). In Bernhardt v. Perry the suit was by a wife against her husband's former employer for loss of consortium by reason of an injury caused to the husband by the negligence of the defendant. The husband was employed by the defendant as a janitor, and as such it became necessary for him to work on the boilers in the cellar of the defendant's apartment. The boiler room was in a crowded condition and was poorly lighted. While draining hot water from the boilers by means of a hose supplied by the defendant, the hose, because of its worn-out and unsafe condition, burst, and Bernhardt, unable to escape because of the crowded condition of the boiler room, was severely burned by the scalding water. As a result of his injuries he was confined to bed for more than a year and his expectancy of life was greatly reduced. The facts clearly show a liability to the husband by reason of the defendant's negligent failure to furnish him safe appliances and a safe place in which to work. The case, however, raised the question of 231 Sedgwick, Damages (9th ed.), 174; I Sutherland, Damages (4th ed.), 38. 24Churchill v. St. George Development Co., supra, note 11; Isman v. Loring, supra, note II. 2566 N. Y. 611 (1876). 26127 Fed. 596 (1904). Sigfus v. Porter, supra, note 10. 'Smith v. Erie Ry. Co., 67 N. J. L. 636 (1902); Hess v. Rosenthal, 160 Ill. 621 (1896); Southern Ry. v. Lewis, 110 Va. 847 (1910). the right of Mrs. Bernhardt to sue Perry for the indirect injury caused her by his negligence. It was argued by counsel for the plaintiff that under the Missouri enabling statute, which the courts construed as permitting the wife to maintain an action against a third person for the alienation of her husband's affections,3 she was entitled to maintain such an action for loss of consortium due to his negligent injury. The court held that there could be no recovery, and this appears to be the well established rule.1 A married woman may maintain an action against a third person for alienating the affections of her husband and depriving her of his aid and comfort." In this class of cases the injury is peculiarly one to the wife, the husband, of course, having no legal rights against the enticer. On the other hand, in the case of negligent injury to the husband he has the right of recovery against the negligent party, and his damages are supposed to make him whole and to enable him to support his wife and children to the same extent as he would have been able to had the injury not occurred. In Flandermeyer v. Cooper a wife was permitted to recover against a druggist for injuries she sustained by reason of the loss of her husband's "affection, society, and co-operation," due to the sale of morphine to him over her protest. In these cases the recovery is based upon the wrongful and malicious interference with the marital relation. However, the courts generally recognize that a husband may sue a third person for his loss of society and services and for medical expenses arising from a negligent injury to his wife by a third persons. The husband may recover even if the wife has been compensated for her injury, but not unless the wife also had a cause of action for the injury to her. 10 Yet, he cannot recover for his wife's physical and mental suffering." 2Rev. St. of Mo. (1909), sec 8309. Clow v. Chapman, 125 Mo. 101 (1894). 'Goldman v. Cohen, 30 Misc. (N. Y.) 336 (1900); Brown v. Kistleman, 177 Ind. 692 (1912); Emerson v. Taylor, 104 Atl. (Md.) 538 (1918); Kosciolek v. Portland Ry., Light & Power Co., 81 Ore. 517 (1916); Smith v. Nicholas Bldg. Co., 93 Oh. 101 (1915); Patelski v. Snyder, 179 Ill. App. 24 (1913); Stout v. Kansas City Terminal Ry. Co., 172 Mo. App. 113 (1913); Feneff v. N. Y. C. & H. R. R., 203 Mass. 278 (1909). "Bennett v. Bennett, 116 N. Y. 584 (1889); Nolin v. Pearson, 191 Mass. 283 (1906); Warren v. Warren, 89 Mich. 123 (1891); Betser v. Betser, 186 Ill. 537 (1900); Price v. Price, 91 Ia. 693 (1894); Clow v. Chapman, supra, note 3. Contra; Lellis v. Lambert, 24 Ont. App. 653 (1897); Morgan v. Martin, 92 Me. 190 (1898); Crocker v. Crocker, 98 Fed. 702 (1899). In one case, Turner v. Heavrin, 206 S. W. (Ky.) 23 (1918), a wife was permitted to recover from another woman who had been guilty of criminal conversation with her husband. 685 Oh. 327 (1912). 'Moberg v. Scott, 161 N. W. (S. D.) 998 (1917). Lagergren v. National Coke & Coal Co., 117 N. Y. Supp. 92 (1909); Townsend v. Wilmington City Ry. Co., 7 Penn. (Del.) 255 (1907); McDevitt v. City of St. Paul, 66 Minn. 14 (1896); May v. Western Union Telegraph Co., 157 N. C. 416 (1911); Elling v. Blake-McFall Co., 85 Ore. 91 (1917); Guevin v. Manchester St. Ry., 99 Atl. (N. H.) 298 (1916); Morrison v. Clark, 72 So. (Ala.) 305 (1916); City of Chattanooga v. Carter, 132 Tenn. 609 (1915); Little Rock Gas & Fuel Co. v. Coppedge, 116 Ark. 334 (1915); Mageau v. Great Northern Ry. Co., 103 Minn. 290 (1908). Zingrebe v. Union Ry., 56 App. Div. (N. Y.) 555 (1900). A few courts have decided that the enabling acts bar recovery by the husband for loss of consortium by reason of negligent injury to his wife, but permit him to recover any expenses he may have incurred thereby.12 These cases hold that since the modern statutes give the wife a remedy for such injuries in her own name, the ground upon which the common law rule rested, which allowed the husband to sue, has been removed, and the action of the husband has been supplanted by the action of the wife. It would seem that if the emancipating acts were to be logically interpreted, the courts would allow an action against a third party to both the husband and the wife for a negligent injury to either. In the case of a negligent injury to the wife she should recover the usual damages resultant from a personal injury, and her husband should recover for the medical expenses, and for his injury due to the loss of consortium. In the case of a negligent injury to the husband, he should be allowed to recover the usual damages for a personal injury and for his inability to properly support his family, and the wife should recover for her loss of consortium. The Connecticut and Massachusetts courts are consistent in their holdings, but not logical. Granted that the wife cannot recover for loss of consortium, there is no logical theory upon which a recovery by the husband can be based, but it would seem that the suit by the wife presented all the elements essential to a recovery. The courts of these two states in their construction of the married women's enabling acts have taken from the husband a remedy to which he would seem to be entitled, and for the sake of consistency, have denied the wife a similar remedy. In Johnson v. Johnson the wife sued her husband for assault and battery committed upon her during coverture, and while the court reversed a decision in the lower court in favor of the plaintiff on a point of evidence, it agreed that under the Alabama enabling statute13 a wife may sue her husband as she may any one else for an assault and battery committed upon her. At common law neither spouse could maintain an action in tort against the other. This rule was based upon the doctrine that the husband and wife were one person, and that it would be unwise from a standpoint of public policy to allow such suits.14 Since the enactment of the enabling acts in the various states, many cases have arisen in which a wife has attempted to recover from her husband for a personal tort committed by him during coverture. The decisions have generally held that the modern statutes, purporting to grant the wife the same powers as a feme sole, have not abrogated the common law doctrine, and that public policy still demands that such actions shall not be entertained by the courts." 15 12 Marri v. Stamford St. R. Co., 84 Conn. 9 (1911); Bolger v. B. E. Ry., 205 Mass. 420 (1910), in which the court says, "No valid distinction can be drawn between the husband's right to recover for loss of his wife's consortium, in cases growing out of the negligence of a third party, and the wife's right to recover for loss of the husband's consortium in like cases.' 13 Code of Ala. (1907), sec. 4493. 14Burdick's Law of Torts (3d ed.), sec. 142. 15 Thompson v. Thompson, 218 U. S. 611 (1910); Schultz v. Christopher, 65 Wash. 496 (1911); Keister's Admr. v. Keister's Exrs., 96 S. E. (Va.) 315 (1918); Butterfield v. Butterfield, 187 S. W. (Mo.) 295 (1916); Lillenkamp v. Rippetoe, 179 S. W. (Tenn.) 628 (1915); Rogers v. Rogers, 265 Mo. 200 (1915); Strom v. Strom, 98 Minn. 427 (1906); Abbe v. Abbe, 22 App. Div. (N. Y.) 483 (1897). Very little can be said in favor of these decisions. The decision in Johnson v. Johnson that such an action should be sustained under the modern statutes, which place the married woman on the same legal basis as a feme sole, seems the correct view, and it has been followed to some extent.16 It seems reasonable to believe that it is only a question of time before the courts will come to realize that the old common law rule as to assault and battery between husband and wife is not in accord with the modern view as to the rights of a married woman, and that the wife need no longer be subjected to a battery by her husband without redress in a civil action. A few courts17 have taken the step and the others may be expected to fall in line. John H. McCooey, Jr., '21. Domestic Relations: Conflict of Jurisdiction in Divorce: Domicile of the Parties. In the case of Ball v. Cross, 106 Misc. (N. Y.) 184 (1919), the plaintiff, domiciled in New York at the time of his action, sought to annul his marriage with the defendant, not domiciled in New York, on the ground that the latter had another husband living at the time of their marriage. Prior to this marriage a decree of divorce had been granted the wife's former husband by a Montana court at a time when neither of the parties to the principal case were residents of New York State; she not being domiciled in Montana, not voluntarily appearing before the court, and being served by publication only. The court in the principal case held that since Montana was not the last matrimonial domicile of the parties, the decree there granted was in New York not entitled to recognition under the full faith and credit clause of the federal constitution, but was recognized it as a matter of comity. 3 The last matrimonial domicile theory seems to have had its inception in the Massachusetts case of Hopkins v. Hopkins,1 and Pennsylvania has consistently applied a similar rule.2 The last matrimonial domicile of the parties as having jurisdictional effect was first given mention by the United States Supreme Court in Atherton v. Atherton, in which case the wife left the matrimonial domicile in Kentucky and went to New York where she instituted divorce proceedings, the defendant appearing and pleading in bar a decree of divorce granted him in Kentucky. The court held that New York was bound to recognize such decree, but the facts there present and the decision rendered lead to the conclusion that it was predicated on the theory that the wife had unwarrantedly deserted her husband, and therefore his domicile was hers and service by publication made her constructively present; and not because of the fact that the adjudicating court 16 Gilman v. Gilman, 95 Atl. (N. H.) 657 (1915); Fiedler v. Fiedler, 42 Okl. 124 (1914); Brown v. Brown, 88 Conn. 42 (1914); Fitzpatrick v. Owens, 186 S. W. (Ark.) 832 (1916). 17N. H., Okl., Conn., Ark. cases, supra, note 16. 13 Mass. 157 (1807); followed in Carter v. Carter, 6 Mass. 263 (1810); and Harteaux v. Harteaux, 14 Pick. (Mass.) 181 (1833), reversed in Burlen v. Shannon, 115 Mass. 439 (1874). Colvin v. Reed, 55 Pa. 375 (1867); Reel v. Elder, 62 Pa. 308 (1869); Fyock's Estate, 135 Pa. 522 (1890). 3181 U. S. 155 (1901). |