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KARCHNER v. MUMIE (12/30/59)

December 30, 1959

KARCHNER
v.
MUMIE, APPELLANT.



Appeal, No. 323, Jan. T., 1959, from judgment of Court of Common Pleas of Luzerne County, July T., 1956, No. 315, in case of Helen Karchner v. Esther Mumie. Judgment affirmed. Trespass for criminal conversation. Before SELECKY, P.J., specially presiding, and a jury. Verdict for plaintiff in amount of $10,000, defendant's motions for new trial and judgment non obstante veredicto denied, and judgment entered on the verdict. Defendant appealed.

COUNSEL

Conrad A. Falvello, for appellant.

Robert J. Gillespie, for appellee.

Before Jones, C.j., Bell, Musmanno, Cohen, Bok and Mcbride, JJ.

Author: Mcbride

[ 398 Pa. Page 14]

OPINION BY MR. JUSTICE MCBRIDE

Plaintiff-wife sought compensatory and punitive damages in trespass for criminal conversation alleged to have occurred between defendant and plaintiff's husband. The jury found for plaintiff and judgment was entered on the verdict.

On this appeal defendant contends that the plaintiff, being a married woman, has no right of action for criminal conversation. There is no appellate Pennsylvania authority on this point. Criminal conversation, at early common law, was an action brought by

[ 398 Pa. Page 15]

    the husband against the other man with whom his wife committed adultery. The action was one of trespass vi et armis, Antonelli v. Xenakis, 363 Pa. 375, 69 A.2d 102, and in many states of America was the civil counterpart of the criminal charge of adultery, the only difference being that in the former the private right was vindicated and in the latter the public proscription. Although in other states adultery is no longer a criminal offense it is still so in Pennsylvania and may be punished by fine or imprisonment, or both. Act of June 24, 1939, P.L. 872, § 505, 18 P.S. § 4505.

In this case the defendant, not being married, would not be guilty of adultery. This factor, however, is not decisive of the present case. It is conceded by both sides that under the common law the parties to a marriage became in legal contemplation one person and that person was the husband and hence a married woman was under a complete disability to institute legal action in her own name. 26 Am.Jur. § 19, page 645; 42 C.J.S. 352, § 697. Hence, a husband at common law had both a procedural and substantive right of action for criminal conversation against any man who made an adulteress out of his wife, but the wife, on the other hand, not only was under a procedural disability but also had no such substantive right of action.

However, by § 3 of the Married Women's Property Act of June 8, 1893, P.L. 344, as amended by the Act of March 27, 1913, P.L. 14, § 1, 48 P.S. 111, a married woman, among other things, was given the same right as an unmarried person to sue and be sued civilly, with certain exceptions not pertinent hereto. Thus the procedural disability to bring suit in her own name was removed and she could thereafter pursue the substantive rights of an unmarried person. Hence, appellant argues that since the Act of ...


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