Thе appellants, hereinafter referred to as plaintiffs, are five minor children whose mother, Marian Nash, brings this appeal as their natural guardian and next friend. The appellee is hereinafter referred to as the defendant.
Marian Nash filed the petition in her own right and as next friend of the infant plaintiffs, alleging that after Marian Nash and James Nash had been husband and wife for about 18 years and had five children (the minor plaintiffs) of that union, the defendant, a wealthy widow, who knew or should have known of the marriage and children, lured James Nash, the husband and father, away from the plaintiffs by providing said James Nash with a finer home, sexual charms, and other inducements. The plaintiff Marian Nash sought to recover actual and punitive damages in her own right for the alienation of her husband’s affections, loss of consortium, and loss of a prospective increased standard of living. In аddition, as next friend of her children, she sought recovery of actual and punitive damages under the common law for alienation of their father’s affections, interference with their family relationships, and “loss of the society, affection, assistance, moral support and guidancе” of their father. The petition also alleged adultery by the defendant with said James Nash.
The trial court sustained the defendant’s demurrer as to each of the minor plaintiffs’ asserted causes of action and overruled it as to Marian Nash’s suit in her own right. The latter suit was tried to a jury, resulting in a verdict for the defendant. The only questions before this court deal with whether any cause of action may be maintained on behalf of the minor children of a marriage, against a woman who entices away their father from the marital home.
To focus more clearly on the major problеm, some less important assertions in the plaintiffs’ brief should be disposed of first. Plaintiffs’ petition below did not allege that the defendant had caused plaintiffs to be deprived of
financial
support and maintenance; the nearest the petition came was “assistance, moral support”, but their рetition on appeal alleges that the defendant had taken from each child “the support and maintenance of [that child’s] father.” As the father would himself be liable for the support of his children, even after he left the family home, and the petition had alleged that when he lеft the father was on the brink of increased prosperity, the allegations on appeal regarding “support and maintenance” will be held to mean no more than
“loss
of society, affection, assistance, moral support and [paternal] guidance”. Thus, the present action does not come within the doctrine or holding of Sharum v. Sharum,
*1337 Also, each child seeks punitive damages. The basic question is whether the minor plaintiffs have any causes of action against the defendant at all. If they have not, that disposes of punitive damages. If they have, the question of the measure of damages, and whether it should include punitive damages, would arise. It is unnecessary, and therefore inappropriate, to express any opinion here concerning punitive damages.
Each infant plaintiff alleged as an injury that the defendant had caused the fathеr to commit adultery and that the father was therefore barred from obtaining custody of that infant plaintiff in the event of a divorce. As there is no allegation that defendant was designedly trying to prevent the father from obtaining custody, and as the court in awarding or denying custody to a parent is thinking only of the welfare of the child, 12 O.S.1971, §§ 1275, 1277; 10 O.S.1971, § 21; 30 O.S.1971, § 11; Holdeman v. Holdeman,
The plaintiffs’ brief argues that the Fifth and Fourteenth Amendments to the United States Constitution compel the recognition of their right of action against the defendant. To establish this, the brief cites cаses in which those Amendments have been relied on to invalidate invidious discrimination against persons by reason of sex, race, religion, alienage, or national origin. From this the brief concludes that the Constitution similarly prohibits discrimination on the basis of age [specifically, nonage]:
“Clearly, to allow an adult a cause of action against a third person for loss of consortium of a spouse and not allow another citizen, in this instance a minor, a cause of action against a third person for . . . enticing the father away . is to deprive these minor citizens of their . . . rights guaranteed by the fifth and fourteenth amendments.”
Among the difficulties with that argument are (1) the cases cited regarding children are deciding whether children should have such a right of action, not whether the United States Constitution requires it; (2) those cases are matched by a large number of cases denying children the right to recover; (3) even the California decisions on which the plaintiffs strongly rely, ended up by deciding that although minor children once had a statutory right to recover from a third person who broke up the parents’ marriage, a statutory amendment had abolished such right in children, although rеtaining it in the injured spouse [which could not have been done had the children’s rights been constitutionally required]. Rudley v. Tobias,
Plaintiffs’ brief relies on Okla. Const. Art. II, § 6 that “ . . . speedy and certain remedy [shall be] afforded for every wrong and for every injury to person, property, or reputation; . . . ” but the difficulty is that this general pronouncement relates to
legal
wrongs and
le
*1338
gal
injuries. Indeed, in the legal sense, “injury” denotes a “legal wrong” — i. e., a wrong for which the law provides a remedy. This section does not promise a remedy to every complainant, not even to every complаinant who suffers financial loss or disadvantage or disappointment, but only to such as have suffered a “legal wrong”. It does not prevent the Legislature from creating new legal rights [hence, new legal wrongs] or from increasing or reducing or changing the scope of such a right or the remedy fоr its violation. For decisions similarly construing identical provisions in other constitutions, consult Jackman v. Rosenbaum Co.,
This brings us to the plaintiffs’ reliance on 76 O.S.1971, §6:
“ . . . every person has, subject to the qualifications and restrictions provided by law, the right to protection . from injury to his personal relations.”
This must be construed together with the specific section on “Wrongs Against Personal Relations”, 76 O.S.1971, § 8:
“The rights of personal relations forbid: (1) The abduction of a husband from his wife or of a parent from his child. (2) The abduction or enticement of a wife from her husband, of a child from a parent, or from a guardian entitled to its custody, or of a servant from his master.”
One looks at the section last above quoted to see what “qualifications and restrictions” (to use 76 O.S.1971, § 6’s own words) the law has provided, regarding protection of a person’s personal relations. This means that the essential question is whеther 76 O.S.1971, § 8 gives the infant child a remedy for the “abduction” of his parent.
Plaintiffs rely heavily on Humphrey v. Pope,
In addition to their misplaced reliance on Humphrey, the plaintiffs cite S Oklahoma Law Review 246 (May, 1952). After devoting its two pages to indicating a preference for that group of diametrically opposed decisions which have allowed a child to recover from a third party who entices away one of - the child’s parents and thus deprives the child of an unbroken home and of the company of the absent parent, the student notewriter devotes only nine lines to Oklahoma. After quoting
The sole question remaining is whether, independently of 76 O.S.1971, §§ 6, 8, a minor child has in Oklahoma a common law right to sue a third person whose luring away of the father breaks up the parents’ marriage and deprives the child of the father’s society and guidance. The common law recognized no such right in the child. That the injured spouse has an action for alienation of affections, loss of consortium, or criminal сonversation does not require that a cause of action be given to the child. According to an annotation in
Although rendered unimportant by our above views, thе defendant’s argument of collateral estoppel or estoppel by judgment is inapplicable. Had the children possessed causes of action for the enticement away of their father, such rights would have been independent and not derivative, and hence (although brought for them by their mother as next friend) would not have been barred by an adverse judgment against their mother’s suit in her individual capacity. Smittle v. Eberle,
Affirmed.