applies to parties occupying that relation, or those representing them, and for a debt created by the purchase of the homestead."

[2] It is not contended by counsel for the plaintiff that he is entitled to be subrogated to the rights of Bryant under the principles of law decided in the case of Rodman v.

Sanders, 44 Ark. 504, or Carr v. Caldwell, 10 Cal. 385, 70 Am. Dec. 740, cited in their brief. Even if this were a suit in equity and they made this contention, they could not successfully maintain it; for the reason that it was within the issue involved in the chancery court instituted by the plaintiff against the defendant to have a lien declared on the land in question for the money loaned the defendant by the plaintiff. appeal was taken from the judgment in that case, and the plea of res adjudicata of the defendant would be a bar to the right of the plaintiff for subrogation.

No

It follows that the judgment must be affirmed.

WEBER et al. v. WEBER. (No. 64.) (Supreme Court of Arkansas. June 22, 1914.) 1. APPEAL AND ERROR (§ 1001*) — VERDICT EVIDENCE-REVIEW.

The court, in testing the legal sufficiency of the evidence of plaintiff to sustain a verdict in her favor, must give that evidence the highest probative value.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3922, 3928-3934; Dec. Dig. § 1001.*]

2. HUSBAND AND WIFE (§ 325*)-ALIENATION OF AFFECTIONS OF HUSBAND-RIGHT OF ACTION BY WIFE.

Under Kirby's Dig. § 6017, authorizing a wife to sue alone as to any separate property or for damages for any injury, a wife may maintain an action for damages for the alienation of the affections of her husband, whether the cause of action is denominated a personal or a property right.

[Ed. Note. For other cases, see Husband and Wife, Cent. Dig. § 1119; Dec. Dig. § 325.*] Appeal from Circuit Court, Pulaski County; G. W. Hendricks, Judge.

Action by Ida Weber against Englebert Weber and another. From a judgment for plaintiff, defendants appeal. Affirmed.

This suit was instituted to recover damages against appellants, for the alleged alienation of the affections of the appellee's husband, Joe Weber. The appellee married Joe Weber, the only child of appellants, in the city of Little Rock on the 22d day of November, 1910, and they lived and cohabited together as husband and wife until the 30th day of August, 1911, when there was born to them a male child. Thereafter appellee was taken seriously ill, and to such an extent that she lost the control of her mental faculties, and, at the instance and recommendation of the family physician, was, by proper order of the Pulaski county court, adjudged insane and placed in the State Hospital for Nervous Diseases, for treatment.

Appellee and her husband, at the time of the birth of the child, and during their married life, lived immediately adjoining appellants, and her husband worked for them. Appellee was released from the hospital as cured, and soon thereafter disagreements arose between appellee and appellants, and the evidence is sharply conflicting as to the causes of these disagreements, and is especially so as to the extent to which appellants were responsible for the separation of appellee and her husband. According to appellee's version, appellants, without legal justification or excuse, brought about the separation, as a result of which appellee's husband took away their child, when it was only seven weeks old, since which time appellee had never been permitted to see the child. She recovered judgment in the sum of $2,500, and, a motion for a new trial having been overruled, this appeal has been duly prosecuted.

E. B. Buchanan and Gus Fulk, both of Little Rock, for appellants. Henry C. Reigler and W. T. Tucker, both of Little Rock, for appellee.

SMITH, J. (after stating the facts as above). A number of exceptions were saved at the trial both to the admission of evidence and the giving of instructions, and these exceptions have been considered by us; but we do not find any prejudicial error or question of sufficient importance to require discussion.

[1] It is also earnestly insisted that the evidence is insufficient to support the verdict; but when appellee's evidence is given its highest probative value, as we must give it, when testing its legal sufficiency to support the verdict, we cannot say that the evidence is legally insufficient to sustain the verdict, nor can we say the amount recovered is excessive.

[2] A question is raised, however, which is one of first impression in this state, and

which has received our earnest consideration.

This question is the right of the wife to main

tain an action for damages for the alienation of the affections of her husband. There is conflict among the authorities as to whether this right of action existed in favor of the wife, or not, at common law, and, although there are numerous cases which hold that she had no such right, the better view appears to be that she did. Common-law causes of action for a personal injury to a married woman belonged to her; but the husband was required to sue with her to recover compensation because of her disability to sue. The husband's right of action abated at the death of the wife; but the cause of action survived to the wife and could be maintained by her after the death of her husband. Her right of action existed, but could not be set in motion unless her husband joined, and, by reason of the disability of coverture, it remained in abeyance and could not be prosecuted in her own name. Bennett v. Bennett, 116 N.

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

Y. 584, 23 N. E. 17, 6 L. R. A. 553; Smith v.
Smith, 98 Tenn. 101, 38 S. W. 439, 60 Am. St.
Rep. 838.

The case of Bennett v. Bennett, supra, is a leading authority on this subject, and the opinion in that case reviewed the authorities upon this question, and, in upholding a judgment in favor of the wife, it was there said: "We think the judgment appealed from should be affirmed, upon the ground that the common law gave the plaintiff a right of action, and that the Code gave her an appropri

ate remedy."

In 1 Cooley on Torts (3d Ed.) p. 475, it was said:

A number of cases support the wife's right to recover for the alienation of the affections of her husband, as an invasion of her personal rights, while other cases regard the wife's right to the consortium of her husband as a property right. One of the leading cases taking this latter view is that of Jaynes v. Jaynes, 39 Hun (N. Y.) 40, in which case it is there said:

"These reciprocal rights may be regarded as the property of the respective parties, in the broad sense of the word 'property, which includes things not tangible or visible, and applies to whatever is exclusively one's own."

And it is there further said:

me to be perfectly clear. The statutes provide:
That the real and personal estate of every fe-
male, acquired before marriage, and ali proper-
ty, real and personal, to which she may after-
wards become entitled by gift, grant, inherit-
ance, devise, or in any other manner, shall be
male, and shall not be liable for the debts, ob-
and remain the estate and property of such fe-
ligations, and engagements of her husband, and
may be contracted, sold, transferred, mortgaged,
conveyed, devised, or bequeathed by her, in the
same manner and with the like effect as if she
were unmarried.'
How. Stat. p. 6295.

'Ac

tions may be brought by and against a married woman in relation to her sole property, in the same manner as if she were unmarried; and in cases where the property of the husband cannot be sold, mortgaged, or otherwise incumber"At least 20 states now hold that such an aced without the consent of his wife, to be given tion may be maintained, some basing their conin the manner prescribed by law, or when his clusion upon common-law principles and some, property is exempted by law from sale on exemore or less, upon the various enabling stat-cution or other final process issued from any utes in favor of married women, which have court against him, his wife may bring an action been passed in recent years.' in her own name, with the like effect as in cases of actions in relation to her sole property as aforesaid.' How. Stat. 6297. Under these statutes it has been held that a wife is entitled to and may sue for and recover in her own name from assault and battery (Berger v. Jacobs, 21 damages for her personal injuries and suffering Mich. 215; Hyatt v. Adams, 16 Id. 180, 198), and for injuries to her person through the negligence of another (Mich. Cent. R. R. Co. v. Coleman, 28 Mich. 440), also for slander (Leonard v. Pope, 27 Mich. 145). If the damages in such cases are her individual property, as expressly held in Berger v. Jacobs, I cannot see why, in reason and on principle, the damages arising from the loss of the society and support of her husband are not also her individual property. Surely the support and maintenance which she is entitled to from her husband, and which she loses by his abandonment, is capable of ready and accurate measurement in dollars and cents, and can be said to be a property right, which she has lost by the wrongful interference of the defendants. The loss of the society of her husband, and her mental anguish and suffering, are not so easily ascertained when compensation is sought, and to be gauged by a money standard; but damages for such anguish and suffering are given, as best the jury can, and are permissible, in most actions of tort. * *There has never been any reason urged against the right of the husband to sue for the loss of the consortium of his wife. And if, as shown, the wife is now, under either the liberal letter or spirit of our marriage laws, entitled, as of her own property, to the damages arising from her personal injuries-the injuries of her body or mind-there can be no good reason why she cannot sue for and recover damages for the loss of the consortium of her husband that does not equally and as well apply to the suit of the husband on account of the loss of her society. The wife is entitled to the society, protection, and support of her husband as certainly, under the law, and by moral right, as he is to her society and services in his household. * * ** It is an old maxim, and a good one, that the law will never suffer an injury and a damage without redress.' Will the law aid the husband and not help the wife in a like case? Not under the present enlightened views of the marriage relation and its reciprocal rights and duties. The reasoning that deprives the wife of redress when her husband is taken away from her by the blandishments and unlawful influences of others is a relic of the barbarity of the common law, which in effect made the wife the mere servant of her husband, and deprived her of all right to redress her personal wrongs except by his will."

"But as, at common law, the husband and wife were regarded as one person, and her personal rights were suspended, or incorporated with his, during coverture, so that if she were injured in her person or property she could bring no action for redress without her husband's concurrence, and in his name as well as her own, * she was practically precluded from suing for damages caused by alienating the affections of her husband and enticing him away. # * Her disability in that respect, we think, has been removed in this state by legislation. A married woman may now, while married, sue and be sued in all matters having relation to 'her sole and separate property, or for an injury to her person or character, the same as if she was sole, * and it is not necessary or proper to join her husband with her as a party in any action or special proceeding affecting her separate property. If we are correct in holding that the right, which the plaintiff alleged was invaded by the defendant in this action, was her separate property, the case is within the statutes referred to. If it be not property in the sense in which the word 'property' is used in the statute cited, it is a personal right, and as the statute extends to all injuries, whether to property, person, or character, it seems to be sufficiently comprehensive to embrace an injury to the right in question."

In the case of Warren v. Warren, 89 Mich. 123, 50 N. W. 842, 14 L. R. A. 545, the wife's right to sue and recover damages for the alienation of the affections of her husband was said to exist under the statute which was set out in the opinion. It was there said:

"Under the statutes of this state relative to the rights of married women, and the decisions of our own courts in relation thereto, the right of the wife to bring this action, as well all other suits to redress her personal wrongs, seems to

In the case of Bennett v. Bennett, supra, the court discussed the nature of this action

and treated it as of the nature of a personal | such married woman separately in her own injury to the wife, and it was there said: name, and the nonjoinder of her husband shall

"An injury to the person, within the meaning not be pleaded in any such action." of the law, includes certain acts which do not The Court of Appeals of New Jersey re

involve physical" or personal injury. "Thus versed the action of the trial court in suscriminal conversation with the wife has long

been held to be a personal injury to the hus-taining the demurrer, and in doing so used band * * * and the seduction of a daughter the following language in construing the act a like injury to the father." above quoted:

L

competent to contract. When the agreement to | good reasons for the rule that the husband
marry is entered into, but before its consumma-
tion, each has the same interest in it, and either
may sue for a breach of it by the other. In
this state neither the husband nor wife uncon-
ditionally surrenders their personal rights by
consummating the contract of marriage. On
the contrary, each acquires a personal as well
as legal right to the conjugal society of the oth-
er, for the loss of which either may sue sepa-
rately."

In the third edition of Cooley on Torts, vol. 1, p. 477, the case of Foot v. Card, 58 Conn. 1, 18 Atl. 1027, 6 L. R. A. 829, 18 Am. St. Rep. 258, is quoted from at length with approval, and we find there the following quotation from that case:

should join in a complaint for damages result-
ing from an injury to the person, property, rep-
utation, or feelings of the wife in every case
other than that before us. Whenever in any of
these she suffers, presumably he suffers; he
has a direct pecuniary interest in the result;
and the defendant is rightfully entitled to pro-
tection from a second judgment. But, in the
case before us, it is the pith and marrow of the
complaint that in alienating the husband's con-
jugal affection from the wife, in inducing him
to deny his conjugal society to her, in persuad-
ing him to give his adulterous affections and
society to the defendant, the latter has inflicted
upon the plaintiff an injury by which from the
nature of the case it is impossible for the bus-
band to suffer injury, for which it is impossi-
ble for him to ask redress either for himself or
for his wife. *
the wife can only ask for damages by and for
** In a case of this kind
herself; the law cannot make redress other-

especially apart from her husband. For no
theory of the law as to the merger of the rights
of the wife in those of the husband could in-
clude her rights to his conjugal affection and
society. Although all other debts and rights to
her might go to him, there yet remained this
particular debt from him to her absolutely
alone and beyond the reach of the law of mer-
ger."

We are not called upon to approve all that we have here quoted from this Connecticut case; but the significance of that opinion is that a recovery was permitted without reference to any enabling act permitting the wife to sue alone.

"Whatever inequalities of right as to prop erty may result from the marriage contract, husband and wife are equal * * * in one respect, namely, each owes to the other the full-wise than to her solely, apart from all others, est possible measure of conjugal affection and society; the husband to the wife all that the wife owes to him. 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. But from time to time courts, not denying the right of the wife in this regard, not denying that it could be injured, have nevertheless declared that the law neither would nor could devise and enforce any form of action by which she might obtain damages. In 3 Blackstone's Commentaries, 143, the reason for such denial is thus stated: "The inferior hath no kind of property in the company, care, or assistance of the superior, as the superior is held to have in those of the inferior; there fore the inferior can suffer no loss or injury.' Inasmuch as by universal consent it is of the essence of every marriage contract that the parties thereto shall, in regard to this particular matter of conjugal society and affection, stand upon an equality, we are unable to find any support for the denial in this reason, and, the right, the injury, and the consequent damage being admitted, there comes into operation another rule, namely, that the law will permit no one to obtain redress for wrong except by its instrumentality, and it will furnish a mode for obtaining adequate redress for every wrong. This rule, lying at the foundation of all law, is more potent than, and takes precedence of, the reason that the wife is in this regard with out the pale of the law, because of her inferiority."

In this case of Foot v. Card, supra, a recovery was permitted without reference to any enabling act authorizing the wife to sue alone. The complaint had been demurred to upon the ground that the wife could not alone maintain this action, but that her husband was a necessary party to the action, if any cause of action existed. That contention was disposed of in the following language:

"Wherever there is a valuable right and an injury to it, with consequent damage, the obligation is upon the law to devise and enforce such form and mode of redress as will make the most complete reparation. A technicality must not be permitted to work a denial of justice. The defendant has no possible interest in requiring the husband to be coplaintiff, other than that she should have security for her costs in the suit, and be protected from a second judgment upon the same cause of action in his name. As she is in no danger of a second judgment, and can compel the plaintiff to give security for costs, it is simply an empty technicality which she here interposes. There are 169 S.W.-21

Many other cases are cited in the cases we have quoted from; but those quoted from show upon what theories and under what circumstances recoveries have been permitted. The absurdity and cruel injustice of the common-law fiction of the identity of husband and wife has long been recognized, and the tendency of all modern legislation has been towards the emancipation of the wife. But this amelioration of the wife's condition must come through the legislative function, and her disabilities at the common law exist, ex

cept in so far as they have been removed by constitutional conventions or legislative enactments. Some of the disabilities under which the wife still labors, as the result of the common-law fiction of the legal unity of the husband and wife, are pointed out in the opinion in the case of Kies v. Young, 64 Ark. 381, 42 S. W. 669, 62 Am. St. Rep. 198. But, while she still labors under the disabilities there recited, we think the Legislature has clearly manifested its purpose to manumit her, so far as maintaining an action to enforce any legal right she may have, or to secure redress for any actionable wrong inflicted upon her, where the recovery would inure to her benefit.

"Where a married woman is a party, her husband must be joined with her except in the following cases: First. She may be sued alone upon contracts made by her in respect to her sole and separate property, or in respect to any trade or business carried on by her under any statute of this state. Second. She may maintain an action in her own name for or on account of her sole or separate estate or property, or for damages against any person or body corporate for any injury to her person, char

acter, or property.
Third. Where the
action is between herself and her husband, she
may sue and be sued alone." Section 6017, Kir-
by's Digest.

These words "person, character, or property" are of the broadest signification and import, and would appear to include any cause of action which could arise in favor of a married woman, out of any relation which she can legally occupy. Although she still labors under some disabilities, she is given by this statute the right to enforce in her own name any right which she legally possesses. While it appears from a study of the cases, which hold that a wife may sue for the alienation of the affections of her husband, that in some of the states, where the courts so hold, the statutes have entirely manumitted the wife from her common-law disability with reference to suing in her own name, it will also appear, from cases which we have cited, and from other cases therein cited, that the right of action has been upheld in the wife's favor where the enabling acts were not as broad as those of this state.

So that, whether this cause of action be denominated a personal right or a property right, the wife, under the laws of this state, may sue if it is either; and the judgment of the court below is therefore affirmed.

ST. LOUIS, I. M. & S. RY. CO. v. BELLAMY et al. (No. 40.)

(Supreme Court of Arkansas. June 15, 1914.) 1. RAILROADS (§ 58*) - COMMISSIONS

ERS OF.

Under the statute (Laws 1907, p. 357), authorizing the Railroad Commission to consider petitions for depots and stations, and to determine the amount, degree, and character of construction, equipment, changes, and enlargements of stations and depots, the Railroad Commission has power to direct a railway company to relocate its stations.

[Ed. Note. For other cases, see Railroads, Cent. Dig. 88 130, 131, 133, 135, 136; Dec. Dig. § 58.*]

was greater than that of rebuilding it at the
old location, where the Commission gave the
railroad company a hearing and the difference
in the expense was not so great as to make
the order unreasonable and arbitrary.

tional Law, Cent. Dig. §§ 832-834; Dec. Dig. §
[Ed. Note.-For other cases, see Constitu-
297;* Railroads, Cent. Dig. 88 130, 131, 133,
135, 136; Dec. Dig. § 58.*]
4. RAILROADS (§ 9*) - COMMISSIONS- Pow-

[Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 12-19; Dec. Dig. § 9.*]

Appeal from Pulaski Chancery Court; Jno. E. Martineau, Chancellor.

Bill by the St. Louis, Iron Mountain & Southern Railway Company against George W. Bellamy and others as the Railroad Commission. From a decree for defendants, plaintiff appeals. Affirmed.

More than 15 citizens of the town of Benton, Saline county, Ark., presented a pePow-tition to the Railroad Commission of Arkansas, in which they stated that they were shippers and patrons of the St. Louis, Iron Mountain & Southern Railway Company, and that the depot of said company at Benton had been recently destroyed by fire; that the company was preparing to build a new depot on the old site, which was on the extreme edge of the city and not accessible to travelers without passing a distance of 1,500 or 1,700 feet along the right of way of the company and between its tracks where travel was made extremely dangerous by the passage of trains on the main line and switches of the railway. They urged the Commission to require the railway company to build its depot at a point immediately south of where its line known as the Little Rock & Hot Springs Western was intersected by East street and Main street. The Commission took the petition under consideration, visited the town of Benton, examined the location mentioned in the petition, heard many witnesses, and concluded that it would be unwise to

2. RAILROADS (§ 58*) - COMMISSIONS-Pow

ERS OF.

Under the statute (Laws 1907, p. 357), authorizing the Railroad Commission to consider all petitions for the enlargement, equipment, and discontinuance of depots and stations, provided the petition shall be signed by at least 15 bona fide citizens residing in the territory sought to be affected, the Railroad Commission may, under a petition signed by 15 citizens of the city, direct the relocation of a station at a point in the city other than that requested by the petitioners.

[Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 130, 131, 133, 135, 136; Dec. Dig. § 58.*]

3. CONSTITUTIONAL LAW (§ 297*)-RAILROADS (§ 58*) - DEPRIVATION OF PROPERTY WITHOUT DUE PROCESS-WHAT CONSTITUTES.

require the railway company to build its new depot at the point named in the petition. The property of a railroad company is not But it issued an order requiring the railway taken without due process by an order of the company to build its new depot building at Railroad Commission requiring the relocation a point between where its depot had been of a station at a new point, though the expense of establishing the station at the new point located and the location asked by the peti*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes