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A wife may sue for alienation of her husband's affections since the law of 1880 removing her civil disabilities. Alienation of affections is considered a direct attack upon marital relations and a direct injury to her, but she may not sue for indirect injuries to herself due to a negligent injury to her husband depriving him of life. “The whole question hinges upon the determination of whether or not a widow can maintain an action for loss of consortium incident to the marriage relation between herself and her deceased husband. It may be set down that at common law, while the husband could maintain an action for an injury to or death of the wife whereby he lost her services and consortium, yet the wife herself could not maintain a corresponding action to recover for the loss of services and consortium due from the husband to herself. The section (of the Oregon law) which repeals laws imposing civil disabilities on the wife not imposed on the husband
does not confer upon the wife any new right of action. It only allows her admission to the courts as a suitor independently of her husband for the purpose of redressing infringement of rights which she already had.
If our legislation gave a widow the right to recover for the death of her husband, or a wife to recover for an injury to her spouse, she would be a competent suitor under this section to institute an action for damages for violation of her statutory right but no enactment exists giving her that privilege” 207
An unmarried woman's right to recover is the basis of a statute which permits an unmarried woman over twenty-one years to sue in her own name for recovery for damages for seduction. This action may be taken in civil courts regardless of what kind of reputation she had borne previously but punishment is provided for in the Criminal Code, only when the injured person has been of previous chaste character.208
The Oregon law makes no distinction between the privileges of husband and wife in the matter of testimony, and the statutes as they stand today are but very little different from those of the 1855 Code.209 As the law stands today, persons in relations of confidence who cannot be witnesses are a husband and wife; they may not be examined, the one for or against the other, without the consent of the one on trial; nor may they be examined concerning any communication made by one to the other during the marriage but this exception does not apply to a civil action by one against the other nor to a crime committed by one against the other.210 As to modifications of common law which the Oregon statutes have made, one judge declared as follows: “Our statute has so far modified the rule of the common law that either husband or wife may be a witness for or against the other in a criminal action by the consent of both, but it would be relaxing that rule to an extent not contemplated by the legislature, and wholly unauthorized by any statutory provision, that such consent could be implied from the fact that the defendant offered himself as a witness'. 211
CHANGE OF NAME.
Age old custom continues in Oregon to determine that a married woman shall bear her husband's name. No lawful change of name of a person “except a woman upon her marriage or divorce” may be made in the state except for sufficient reasons.212 The privilege of restoring a woman's maiden name to her after divorce was granted to the courts by the first statutes “for just and reasonable cause" when the wife brought the suit, and was not the party in fault.213 At present there are no restrictions on the action of the court in this regard.214
GUARDIANSHIP OF CHILDREN. The common law doctrine which gave the father control over his children in preference to the mother, found its first expression in Oregon legislation in the statutes on Masters and Apprentices where a father was permitted to bind out his child; if the father were dead or incompetent the mother might do so.215 The next statute was one which gave the father the right to appoint by last will a guardian for his minor children and this guardian was to have the authority of the father over them and by common law usage, might even remove them from the mother's custody if she remarried.216 This was amended to give the mother also the right to appoint a guardian by her will, if the father were dead, and to provide that no guardian should deprive either surviving parent of the persons of their minor children.217 The mother has been made the legal guardian of the children also, when the father is not dead but is legally incapacitated or fails to provide for the children under fifteen years of age.218
In court decisions concerning the custody of minor children of divorced persons, Oregon judges seem to have taken a uniformly humane, wise attitude. The child has been left with the mother even though a relative of the father was better able financially to support it,219 and with the mother when the child was a daughter in preference to the father, where both parents were responsible, fit persons, but the father was financially better able to care for her.220 An infant son who with other children had been given to the mother who married again and later called for aid in support of the children from her former husband, was declared by the court as rightfully belonging to the father, now that the child had attained a safer age if the father were going to support him.221 And a mother, to whom an infant son had been given, having died, the father was allowed to take the child from his maternal grandmother.222 A mother who defaulted when the juvenile court took charge of her child as an abandoned child and maintained it in an institution and later allowed it to be adopted, was refused the person of the child after her marriage, when she instituted action to recover it.223 And finally, in a suit by a father to recover damages for the death of his four year old son by the fall of tiling the court said: “Under our statute the right and responsibility of the parents in regard (to the care and custody of a minor child) are equal and the mother is as fully entitled to the care and custody of the children as the father” 224 The mother, however, of an illegitimate child is its natural guardian, and its putative father is not legally bound to support it even though he had promised to do
THE RIGHT TO FOLLOW CERTAIN PROFESSIONS. The right to follow a particular profession may prop erly be classified as a property right; but exclusion from a certain kind of work might be in the nature of a restriction of personal liberty; hence the discussion of the subject here.
Oregon has not had at any time any statute which expressly forbade women to enter upon the professions formerly considered as prerogatives of men, such as the practice of medicine, law and dentistry. Women physi. cians have practiced in the state since 1869.226 Women attorneys sought admission to the Oregon bar in 1878, through a bill intended as an enabling act, but the bill did not emerge from the Committee and the matter rested until 1885.227 In that year a Mary Leonard who had been admitted to the Supreme Court of Washington Territory asked to be admitted as a member of the bar in Oregon. The action on her application and the attitude of Oregon's Supreme Court on the question of “lady lawyers”, is given in the decision of the Court on the motion from which we quote. “The application is somewhat unusual.228 The applicant has produced a certificate of admission to the courts of Washington Territory, which
would ordinarily be regarded as sufficient to entitle a person to admission as an attorney, but the applicant being a woman, the Court is in doubt whether it has a right to admit her. The question is not free from embarrassment and the Court would gladly avoid the responsibility of determining it. Courts, however, have no discretion in such cases. They are compelled to follow precedents as they are evidence of what is law.
“In a very able opinion of the Chief Justice of Magsachusetts, it was held that an unmarried woman was not entitled, under the then existing laws of the commonwealth, to be examined for admission as an attorney
and counsellor of that court. Oregon's statutes do not differ materially from Massachusetts in regard to the civil and political status of women, and it follows therefore, that the same construction of the latter statutes would render women ineligible to become attorneys in the state. This is the first application of the kind in this state that the court has any cognizance of, and it is very generally understood that women are disqualified from holding such positions. The legislative assembly has not manifested any intention by any act it has adopted to confer such a right upon them, and it would be highly improper for the courts of the state to take the initiative in so important a movement.
The court is of the opinion that it has no authority under the existing laws of the state to admit women as attorneys of this court and the application is denied." The legislative assembly therefore at a special session that same year passed an act declaring: “Hereafter women shall be admitted to practice law as attorneys in the courts of the state upon the same terms and conditions as men”.229
PROTECTION BY DENIAL OF RIGHT.
” denied women under twenty-one years of age, by a law of 1905, was that of entering a saloon or any place where intoxicating liquor was sold. Such young woman might not be given or sold intoxicating liquor, except at a penalty for the giver, upon conviction, of a fine of not less than $100 nor more than $1000, or imprisonment in the county jail for not less than three months nor more than one year. An exception was made for a female accompanied by husband or parent, and the act did not apply to any open and public restaurant or dining room. The interesting feature of this law is that it applied to persons who were adults in the eyes of the law, since eighteen years is the age at which a female is deemed to have reached her majority. Nevertheless, the courts upheld the validity of the law and emphasized it by declaring that the purpose of the visit had no ameliorating influence on the presence of the young woman there. 230