Statement of the Case.

ence, 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, SHAUCK, PRICE, JOHNSON and DONAHUE, JJ., concur.

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.

To

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. 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 re

Statement of the Case.

turned 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." Afterwards 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.

Syllabus.

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.

FLANDERMEYER V. COOPER.

Husband or wife-May maintain action for damages-Against anyone wrongfully interfering-With marriage relationshipWife may sue druggist 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 of 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,

Statement of the Case.

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

Statement of the Case.

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