*1 TEITELMAN, Judge. B. RICHARD HELSEL, Louise Katherine divorced Helsel and David Katherine Respondent, filed Helsel In March January 2001. Noellsch for against Sivi suit intention- alleging that Noellsch NOELLSCH, D.C., Appellant. Sivi the interfered with ally No. SC 85053. juryA returned ver- fail.1 caused it to Missouri, post- Court filed Supreme Helsel. Noellsch in favor of dict En Banc. to abolish in the trial court trial motions of affection. the tort of June issue before trial court declined. law tort of the common is whether a viable affection remains in Missouri. Because action cause of upon is premised assumptions, concepts, faulty antiquated tort precedent, inconsistent with and is judgment in Missouri. is abolished reversed. the Tort History
I. pure bloodlines In order to ensure adultery, early Germanic discourage that men were entitled provided tribes that the lover so from wife’s payment spouse. new purchase a husband could 422, 423-424 Hoye Hoye, Note, Hey, Bruce (Ky.1992); V. Tort Alienation My That’s Wife!—The Missouri, Mo. L.Rev. of Affection 241, 243, to the As successors tradition, also Anglo-Saxons Germanic for men to of action provided a cause with the another’s interference recover for for this relationship. The basis marital that wives were viewed of action was husband. Id. to their as valuable servants McManus, Owens, James W. Dennis J. law estab- Later, English common early City, Appellant. Kansas action, enticement two causes lished seduction, precursors which are Ritchie, for Re- Joseph, St. Craig D. of affection torts of alienation day modern spondent. and, 3) connection there was a causal spouse; of affec- a claim of alienation 1. In 1) conduct and the defendant’s en- between requires proof that the defendant tion Frowein, conduct; 2) plaintiff's loss. Gibson v. plaintiff wrongful gaged in (Mo.1966). her of his or the affections or consortium lost *2 Page Id; Concepts Property and criminal A. Antiquated conversation. W. Keeton, al„ Keeton, et and PROSSER original justification for the tort op ToRts, (5th § at 917-918 Law in antiquated of affection lies the alienation ed.1984). purpose underlying both proprietary husbands had a concept that causes of action was the to vindicate hus- in and of their person interest the services property rights band’s in his wife. Pros- Although longer modern courts no wives. Keeton, supra, ser and at 917-918. in justify the of alienation of affection tort terms, funda- tort has remained these the Beginning with New York in al- mentally unchanged since its establish- every country eventually most state in this in The elements are the ment Missouri. established a cause of action for alienation are the same. Be- same. The defenses men, women, of affection in which but not change been no structural there has rights could vindicate their in the marital of affection claims since its to alienation Keeton, relationship. supra, Prosser and in the inception, grounded the tort remains at In early 918. the late nineteenth and justified originally property concepts centuries, states, including twentieth most H. quoting, at Hoye, it. equalize legal acted to status Clark, in The Law of Domestic Relations in by allowing of wives them to sue their p. §4.2, States, United Therefore, justi- original own names. to an perhaps This idea “is better suited tort, fication for the that husbands had a prop- as the regarded era that one wives, property right in their under- was at Hoye, erty another.” at Hoye, mined. 424. None- Keeton, supra, at quoting Prosser and theless, persisted, the tort but with a new jurispru- 917. It has no in modern place justify rationale. courts to Modern came dence.2 suits for alienation affection as means preserving marriage family. B. Faulty Assumptions Norton v. Macfarlane, p.2d (Utah 1991); Siddiqui, Thomas v. though original property con Even 1994) (Robert- to the cepts inextricably remain bound son, J., tort, for dissenting). argue that suits alien some still retained as a
ation of affection must be marriages preserving useful means of II. Abolition See, Norton, 818 P.2d protecting families. many persuasive There are reasons for (Utah 1991); Siddiqui, at 12 Thomas v. abolishing the tort of alienation of affec- 1994) (Rob antiquated in grounded tion. The tort is ertson, J., are dissenting). these While concepts property spouse, interests it that suits goals, unlikely laudable is upon faulty assump- based presently this actually of affection serve preserves marriages, tion that it and is Siddiqui 869 S.W.2d purpose. Thomas v. (Price, J., inconsistent with this decision concurring). Court’s To the con at 742 Funder trary, likely Thomas wherein true. opposite Mickelson, 790, closely abolished the related common law 304 N.W.2d mann (Iowa 1981); supra, at 253. tort of criminal conversation. Jett, (Mo. origi accomplish their have failed Breece kind Cf. purpose are considered App.1977) (suggesting abolition of the com nal social unwise.”). socially many jurisdictions seduction because "actions of to be mon law tort of recovery from likewise be barred are should First, alienation of affection suits for of “alien- attaching the moniker by simply after the mar- exclusively brought almost Consis- petition. or irre- ation of affection” legally dissolved riage is either that the tort of demands Revenge, tency not reconcilia- trievably broken. *3 the tort of as was
tion, primary motive. of affection be abolished is the often Thomas, See, Schuckardt, 112 Idaho criminal conversation. v. O’Neil J., (Price, concurring). (1986); 54 Am.JuR. PROOF at 742 P.2d S.W.2d Alienation Facts 3d of Affec- Proof of of III. Conclusion tions, § 6 disap of law the reason for a rule Second, suit, When plaintiff by filing Thomas, 869 should the rule. pears, so to acknowledging the intimate details publicly 741; Norman v. at State ex marriage. S.W.2d that led to the breakdown of the inf. (Mo.1930). Ellis, The 28 S.W.2d positions taken necessarily The adversarial longer no of affection can tort of alienation litigation intensely personal over in justified. original prop The adequately a useful be matters does not serve as private are incon erty justifying the tort concepts preserving marriage. means of jus The modern Fundermann, 791-792; modern law. sistent with supra, at marriages preserves that the tort tification at 253. supra, has abolished the is a fiction. This Court Consistency C. common law tort of criminal closely related Siddiqui, v. conversation. Thomas abol- Siddiqui, In Thomas v. of alienation of at 742. As the tort S.W.2d law tort closely ished the related common courts, it is was created only differ- of criminal conversation. The of courts to abolish province within the alienation of affection and ence between See, it. Thomas criminal conversation is that criminal con- (Mo. 1994); Abernathy banc requires proof versation of an adulterous 599, 605 Mary’s, Sisters St. However, differ- relationship. sexual of (Mo.1969). of of affec The tort in the torts does not ence the elements of in tion is abolished Missouri.3 alien- provide good distinguishing a basis from criminal ation of affection conversa- judgment is reversed. simply represent both tion because torts ways interfering different with the same PRICE, WOLFF, WHITE, STITH and Stanton, Skaggs relational interests. JJ., concur. (Ky.1975); Prosser BENTON, J., in separate dissents Moreover, Keeton, reality, opinion filed. alienation of af- criminal conversation and alleged concurrently typically
fection are LIMBAUGH, C.J., opinion concurs in- always almost as the conduct issue BENTON, J. Keeton, su- adultery.
volves Prosser BENTON, Judge, dissenting. DUANE If cannot recov- pra, spouse at 917-918. a consistently compen- common law affair under a er because of an adulterous for interference with theory, spouse a sates criminal conversation by statute and six have the tort holding brings in line with the abolished 3. This Missouri jurisdictions overwhelming majority through Louisiana it the courts. abolished already alienation of affection. recognized have abolished the tort. and Alaska never decision, thirty-four states have to this Prior originally justified Loss of alienation of affection. relation —“loss of consortium.” of three elements justification consortium is the second original for loss of consor- in an of affection claim. Gibson (only) was to a compensate tium husband Frowein, 418, 421 injury from an for his losses his wife. 1966). “The foundation of a cause of ac- Transit, Inc., City Novak v. Kansas of affection is the loss of tion for alienation If Kraus, consortium.” Kraus v. decisive, origin of action is (Mo.App.1985). consistency abolishing dictates loss con- injured, spouse
In tort cases where a
claims.
sortium
separate
the other
often has
*4
majority’s
The
second
is “faulty
reason
v.
claim for loss of consortium. Powell
assumptions.”
majority expresses
184,
834
Corp.,
American Motors
concern that
for
of
suits
affec-
188
Most of these losses
after a
brought
marriage
tion are
is dis-
negligence.
caused
a defendant’s
by
are
justify
solved or broken. This does not
In alienation
affection—an intentional
of
tort,
abolishing the
because claims for loss
conduct
tort —a defendant’s intentional
may
brought
of consortium
be
after the
Gibson, 400
causes the loss. See
marriage
Bridges
relation ends.
v.
com-
421.
It is inconsistent that the law
(Mo.
322,
Enterprises, 992 S.W.2d
325
Van
negligent
causing
conduct
pensates
(after
consortium,
Co.,
Wyatt
v. R.D.
opinion) App.1999);
loss of
but
Werner
compensate
Inc.,
579,
for intentional con-
(N.D.1994);
does not
524
580-81
N.W.2d
causing
duct
the same loss.1
(Second)
Torts,
Restatement
section
of
(1977).
693,
f, p.
cmt.
497
(Second) of Torts clas-
The Restatement
sifies loss of consortium as an “Indirect
majority
prevent public
intends to
Marriage
Interference with
Relation.”
acknowledgment of the “intimate details”
(Second)
Torts,
Restatement
section
its
marriage
breakdown.
(1977).
693,
495
The Restatement clas-
p.
Again,
applies equally
this concern
to loss
as a “Direct
sifies alienation
affection
of consortium claims.
Marriage Relation.”
Interference with
(Second)
Torts,
Restatement
section
explanation
common
for allow-
The most
(1977).
683,
that
p. 478
It is inconsistent
ing recovery
by
for loss of consortium a
compensates
for indirect interfer-
law
impairment
...
is the
or destruc-
(after
relation,
with the
but
ence
tion of the sexual life of married cou-
not for
interference.1
opinion)
direct
ple by a tort-feasor as an element of
damage
spouse’s
in the
consortium ac-
majority advances
The first reason the
elements,
...
there are other
“antiquated property concepts”
[But]
tion.
is
Still,
714,
(Okla.1991); Koestler
majority
abolishing
also
v.
819 P.2d
716
I assume that the
Pollard,
797,
7,
471
distress”
v.
162 Wis.2d
N.W.2d
causes for “infliction of emotional
542,
contract,"
(1991); Speer Dealy, 242 Neb.
495
11
v.
and "tortious
interference with
911,
(1993); Cherepski
913-15
v.
support
where the
a claim for alienation
N.W.2d
facts
43,
761,
Walsh,
Walker,
See, e.g.,
Ark.
913 S.W.2d
767
Hellmann v.
323
of affection.
Philbrook,
198,
(1996);
(Mo.App.1998);
Lotring
701
1034
v.
A.2d
199-200
Pressnell,
8,
Weicker,
(R.I.1997);
38 Ohio St.3d
22 N.Y.2d
290 N.Y.S.2d
Strock v.
Weicker v.
207,
1235,
(1998);
732, 733-34,
(1968);
Doe v.
876
Howton
527 N.E.2d
1242
237 N.E.2d
617,
Doe,
(Ala.1987);
Md.
747 A.2d
623-24
Avery,
174
358
511 So.2d
(2000);
Reynolds,
Va.
Corp.,
v. Union Carbide
180 W.Va.
McDermott
Weaver
(W.V.1989);
S.E.2d
S.E.2d
Wilson
Illinois, Hawaii, Mississippi, New
love,
compan-
care and
such as
states —
Dakota,
Carolina,
Mexico, North
South
ionship ....
Kennedy,
and Utah. See Veeder
Powell,
(S.D.1999). True,
six
n. 6
N.W.2d
third reason advanced to abolish
previously abolished
states have
“consistency”
affection is
with
judicial decision. See
the tort of criminal conversa-
abolition of
3;
Thomas,
Hoye v.
at 744 n.
years ago
nine
in Thomas v.
tion
(Ky.1992).
Howev
Hoye, 824 S.W.2d
1994). To the
er,
having abol
Supreme
three
Courts—
abolishing crimi-
contrary, a rationale for
re
recently
ished criminal conversation —
of alien-
was that the tort
nal conversation
affection.
fused to abolish
compensate
still
ation of affection would
(Miss.1999);
Hill, 735
Bland v.
So.2d
marriage relation.
for interference with the
(S.D.
Kennedy,
ual with only to criminal con-
at 741. The defense Id. plaintiff. was consent
versation
Damages Muchisky presumed. were (Mo.App.
Kornegay, 741 S.W.2d HOME BUILDERS ASSOCIATION Alienation of affection has three ele- LOUIS, INC., GREATER ST. OF 1) conduct; wrongful ments: defendant’s Respondent/Cross-Appellant, 3) 2) and, consortium; plaintiffs loss of con- causal connection between defendant’s Gibson, 400 plaintiffs duct and loss. Missouri, WILDWOOD, CITY OF at 421. There are various defenses S.W.2d Appellant/Cross-Respondent. affection, including causa-
to No. SC tion, wrongful the lack conduct. Blessing, See Comte Supreme Court of (Mo.1964); 782, 783-84, Thornburg En Banc. Express Corp., Federal 17, 2003. June Damages must be (Mo.App.2001). Kraus, 693
proved. sum, consistency majority applies
In protect whether the torts
at the level of At this relational interests.”
“the same
level, question today’s opinion calls into consortium, which also
claims loss of interests. marriage relational
protect tort of recognize
I would continue other like seven