*1 729 Smith, Smead, Roberts, Harbour, Harris Harris, French, Longview, for Jerry & S. Petitioner, FELSENTHAL, Daniel I. petitioner. Keeling, Keeling, A. Badders & C. Respondent. Wayne McMILLAN, Billy respondent. Nacogdoches, for B-3485. No. Supreme Court of Texas. GREENHILL, Chief Justice. March brought by This action was a husband May Rehearing Denied and for criminal affections alleged because of acts of sex-
conversation ual between the husband’s wife intercourse The facts are set out the defendant. appeals. court civil entered sum- 482 9. The trial court mary judgment for the defendant. appeals, had noting court of civil that there been no alienation of the affections of deposi- husband or wife as shown their tions, court nevertheless held that trial granting summary judgment erred in to the cause of action for criminal con- versation. affirm. We appeals correctly The court of civil held the tort of criminal conversation part adopted by this of the common law state Article 1 of the Texas statutes.1 part That such tort was a of the common England law of and as declared Harper several states is set out in 1 & seq.; on Torts et Restate- (1956) 609 James ment of Torts, 685; Prosser, Section Law 887; of Torts (4th ed. 876 and 1971) seq.; 402 et other author- Am.Jur.2d ities. law, only the husband At common equal Because of bring action. could recognition because of rights statutes and also protection, the wife equal be able to maintain has been held to matter in all states where the us, but we That matter is not before arisen. any other the action on could not live with con- partakes of this If the husband basis. (1922) ; Austin, 112 Tex. S.W. 1. The article is also article of Vernon’s Reib, Grigsby 153 S.W. 105 Tex. As to wliat Annotated Civil Statutes. adopted in Texas see: law was City of Life Ins. Co. v. Great Southern *2 versation, equally judgment the interests are The of the of ap- wife’s court civil infringed rights legal peals and her redress is to affirmed. pos- the suggests must same. the he This Dissenting opinion by STEAKLEY, J., of an sibility aggrieved suing husband a WALKER, in which POPE and DEN- conversing aggrieved wife of TON, JJ„ join. conversing
who also sues the wife aggrieved unsavory pic- is an husband. STEAKLEY, pleasant (dissenting). in ture. a suit is not a one Such Justice Perhaps why context. that is we so question The here is whether the tort a perhaps seldom see suit this nature and arising out of the offense as crimi- known spouse expect the aggrieved should not to nal as ac- recognized conversation be anything in recover but nominal tionable in I do Texas. would not do so. I spouse where case the besmirched has regard particular significance wheth- participated willingly. er right or not we now have this law, by adoption in as Texas of the common Nevertheless, petition alleges a have, I majority says. If we would
wrong spouse and a aggrieved harm. The abolish it. surely injured is whether or not the affec conversing spouse tions of the been have should of crim- recognize We offense rape may alienated. And it be noted that term inal conversation for what it The is. is included in the tort criminal conversa conversation,” “criminal in general its Torts, 685, tion. Restatement of Section sense, comprehensive synonymous with c; b anguish comments and mental “adultery”; but in its limited and more injuries other to the offended signification may technical it defined as be may quite be real. aspect in of a Turner tort. Heavrin, 65, 23, Ky. 4 182 206 S.W. have We found no court which Gibson, A.L.R. 562 (1918); Gibson v. 240 abolished tort or refused recognize to it 827, (1966); Ark. 402 S.W.2d 650 part law, and we decline Hirschy Coodley, 116 253 C.A.2d If do the Legislature, so. is now which Clower, (1953); P.2d 93 Rheudasil v. 197 session, matter, that, in desires to act 345, 346, Tenn. 270 46 A.L.R.2d course, prerogative. its (1954).. Legislatures The of 10 or 12 states rape are not concerned here with We have enacted “Heart Balm” statutes battery. with of assault or form affections, abolish the torts of alienation husband, wife, The and in some cases criminal prom conversation and breach of undoubtedly to re- has a of action marry, ise to or one or more of torts.2 such resulting any injuries cover harm Most of legislative those appear acts person. invasion of her from forcible have abolished the tort of con criminal of action She would also have cause versation. But no such action has been intercourse where her consent to sexual taken Legislature. Texas Such was obtained duress or fraud. statute was considered but it failed pass. See pages House are with the tort We not concerned (1935) Journal 1929-30. This known as of affections. alienation Prosser, (4th 1971) ; Legisla- (1971) Feinsinger, 2. Laws of Torts ed. at Journal page Balm,” A Mich. basis for such Attack on “Heart statutes tive Casenote, may (1935) ; that Balm” “Heart lawsuits more 22 Va.L.Rev. L.R. 979 pre- unwillingness purposes useful blackmail than The writer’s protect marriages application of ac- serve and of causes and the to extend the spouses. Comment, Piracy is set in the dissent on the of this nature out tion Maclay, Kelsey-Seybold Matrimonial Clinic v. Seas —The Law and the (Tex.1971) Interloper, at Marital 25 Southwestern Law S.W.2d 716 that Appeals concluded Civil Court of wrongdoer, when right of action arises would of affections married, an action for-alienation inten that wife who knows Mc- facts; but these not lie under af divert her tionally out and does sets deposi- together with pleadings, Millan’s her Restate husband. See fections from support evidence, sufficient to were Torts, tion ment, recognized the 683. We § conversation. for criminal cause of action affections recover *3 right to for remanded and Maclay, The was reversed case in Kelsey-Seybold Clinic trial of this. 482 S.W.2d con 1971), and should (Tex. with so. We are not concerned tinue to do then, husband question, is whether a Our when the right of action that accrues the whom from with is recover one entitled to disrupting the purpose for wrongdoer, relations willingly had sexual the wife has relation, sep marriage induces a wife to the further no and the husband sustains where her not return to arate from husband or to wife’s marriage is The loss. intact. The separated him after she from him. See been has not affection for her husband Restatement, Torts, § common or diverted. At diminished law'"! McMillan, Plaintiff, Billy and his Wayne a cause in where jurisdictions and McMillan, pro- wife, Mary Ann were in the husband recognized action is favor of prietors Longview, Texas. a small in circumstances, bar of the consent under these practice Mrs. McMillan It for was that The fact wife no defense. while her to run the establishment alone was wrongdoer not know the wife did husband conducted other business activities. single her is not married but believed Danny night February repre- On the wife a The fact that defense. group and a of other cus- Felsenthal small single a defense. sented herself as is not with Mrs. McMillan tomers walked outside aggressor The fact that the wife was the midnight. After when closed the bar at she not a fact has been defense. The that she bar, a gathering group brief outside the neglected by her husband or mistreated disbanded and Felsenthal asked Mc- Mrs. her a and not defense. The fact that she a Millan to take ride in his car. She did so separated through husband his fault were they they went to a house and lake where on is not a the case comes defense. When stayed early until morning. moreover, Mrs. McMillan trial, of occa- number they testified had drink and then had a sexual sions on which the wife has had intercourse. sexual Felsenthal testified that relations the defendant and with with drinking only joint activity. was their highly others on inquiry is a relevant episode became known McMillan damages. issue of alleged and he sued He Felsenthal. that just my opinion In de- cause of action
Felsenthal had alienated affections of place legal system. in scribed has no our Mrs. McMillan and that he had committed innocent as well as While the trespass on McMillan’s to exclusive infidelity, marriage from an suffer act relationship sexual with his wife. damages an alleviate award of will neither granted The trial court Felsenthal’s mo- nor marital strengthen emotional distress summary grounded tion for judgment wrong on not be Adultery ties. should deposition testimony principals condoned, only ever, rarely, it is if that but depo- damages involved. Mrs. McMillan said in her remedy the existence of a civil sition that she still her Aft- loves husband and will constitute effective deterrent. stay deposition, event, wishes to with him. In his er the effort expressed damages wrongdoer, McMillan recover from satisfaction that unsuccessful, meeting his of wife with Felsenthal un- whether or wheth- was successful court, planned, covertly open that er his wife’s affections were undertaken or in not serve endanger, certainly alienated. could restore, Balm,” And a marriage. sustain Attack on “Heart 33 Mich.L.Rev. destroy certainly
contested trial will almost
The reasons for this
are well
Family
spouses might
chance
otherwise
stated
the author
Journal
meaningful
supra:
have to reestablish
marital re- Law
therefore,
me,
lationship.
seems to
“The common law action
criminal
recognition of the cause of action will do
statutory right
conversation and the
good,
more
than
unable to
harm
I am
respect
action for
justify
automatically
rule
of law that
en-
ought
to be abolished. These
money compensation
titles the husband to
action seem better
to inflict
calculated
every
has,
case
his
without
where
wife
pain upon innocent
members
fam-
consent,
his
had sexual relations with an-
ilies of
parties
than to secure redress
other.
an aggrieved spouse.
The most sig-
*4
nificant
of these
characteristic
of
prior
This
has not had
Court
occasion
adultery.
act of
action is
fact
consider this cause
action and the writ
of
of sexual misconduct tends to arouse
granted
might
was
that we
do so. A casual
moral indignation
frequently
which
re-
to the
in Mc
reference
action
found
damages
sults in
being
by
not
awarded
Bush,
Gowen
ened or utilized for folly pro-
And the this tort as somehow
tecting family would be more mani- here had intervened
fest Mrs. Felsenthal McMillan, against likewise suit Mrs.
criminal conversation. ac-
I would therefore disavow a
tion in either criminal conversation circumstances, under here judg- And so would
now. reverse I af- Appeals
ment of the Court of Civil
firm that of the trial court.
WALKER, DENTON, JJ., POPE
join in this dissent. Individually TINDALL, M.
J. d/b/a Petitioner, Gin, J. M. Tindall Respondent. RHODES, Thelma Waters, E. Smith, Teed, & David Wade Holt, Pampa, petitioner. No. B-3770. Harold W. Ochs- Baughman,
Supreme Ochsner & Court of Texas. Amarillo, respondent. ner, March Rehearing May 2, Denied PER CURIAM. of March original opinion under date 1973, is withdrawn and this therefor.
substituted in- Rhodes January Thelma On against indi- M. Tindall a suit itiated J. Gin, for vidually Tindall M. d/b/a J. husband, an wrongful of her death gin his death employee of the at the time of