Daily v. Parker, 45 C 672.

Decision Date29 June 1945
Docket NumberNo. 45 C 672.,45 C 672.
Citation61 F. Supp. 701
PartiesDAILY v. PARKER.
CourtU.S. District Court — Northern District of Illinois

Urban A. Lavery, of Chicago, Ill., for plaintiff.

Eckert & Peterson, of Chicago, Ill., for defendant.

SULLIVAN, District Judge.

On May 10, 1945, plaintiff filed her complaint in this court asking damages in tort in the sum of $300,000. Jurisdiction is invoked on the ground that plaintiff is a citizen and resident of Oil City, Pennsylvania, and defendant is a citizen and resident of Chicago, Illinois, and the amount involved exceeds the sum of $3000, exclusive of interest and costs.

Count I of the complaint is entitled enticement, and sets out that for several years prior to February 9, 1944, defendant, a woman of great wealth, illegally and maliciously induced Wilfred J. Daily, the husband of plaintiff, to consort and associate with her; and on or about February 9, 1944, defendant enticed and induced the said Wilfred J. Daily to desert and abandon his wife and four minor children, and to remain away from their home in Oil City, Pennsylvania, and to constantly and continually live and associate with defendant in sundry other cities and places, particularly in the City of Chicago. That by reason of the illegal and malicious acts and doings of defendant, plaintiff's family life has been destroyed and all imponderables have been and will continue to be denied her; that the said Wilfred J. Daily has defaulted and failed in his financial duty and responsibility to plaintiff and to their children; except that after criminal non-support proceedings on behalf of plaintiff and her children were instituted against him in Pennsylvania, and a criminal extradition warrant presented to the Governor of Illinois, Wilfred J. Daily paid to plaintiff at various times a total of $500, which payments plaintiff believes will cease when such extradition proceedings are heard and determined. That Wilfred J. Daily refuses to leave defendant and return to live with his wife and children. Count II asks damages for alienation of affection, and Count III charges criminal conversation.

Defendant has filed a motion to strike and dismiss the complaint on the ground that Counts I and II are each in substance a claim for alienation of the affections of plaintiff's spouse, and Count III charges criminal conversation, all of which actions are barred by the Statutes of Illinois and of Pennsylvania.

In 1935 the Illinois Legislature enacted Sec. 246.1 et seq. of Chapter 38 of the Criminal Code, Ill.Rev.Stat.1941, popularly known as the "Heart Balm Law," entitled "An Act in relation to certain causes of action conducive to extortion and black-mail, and to declare illegal, contracts and acts made and done in pursuance thereof." Section 1 of the Act made it "unlawful * * * to file" an action "for alienation of affections, criminal conversation, or breach of contract to marry." Section 2 made void all contracts in settlement of these claims or causes of action. Section 3 prohibited the naming of a correspondent in a divorce action. Sections 4 and 5 were penal provisions making it a crime to file the actions named in Section 1, or to name a correspondent in a divorce action, as prohibited in Section 3. Section 6 provided that actions pending at the time of the passage of the Act were not affected thereby. In the case of People v. Mahumed, 381 Ill. 81, 44 N.E.2d 911, the Supreme Court of Illinois held Sections 3, 4 and 5 of the Act invalid and unconstitutional, for the reason that the subject matter of those sections was not included in the Title of the Act, thus leaving in force only Sections 1 and 2. In 1935, Acts Ind.1935, c. 208, the Indiana Legislature passed a law abolishing the right of action for alienation of affections, criminal conversation and breach of contract to marry, as did also New York and Pennsylvania. The Illinois law, however, together with the laws of some eight or nine other states, only made it unlawful to file the actions. Defendant insists that the Illinois Legislature by this Act intended to, and did in effect abolish suits for alienation of affection, breach of contract to marry and criminal conversation, and that Sections 1 and 2 thereof, which are the only sections now in force, are in reality a declaration of public policy, and amount to a legislative recognition of the blackmailing propensities of persons bringing this type of cases. I cannot believe that the Illinois Legislature intended to enact a law which would result in the protection of persons guilty of alienating the affections of a husband or a wife, declaring the same to be a public policy in the interest of the public welfare, and at the same time make it unlawful for an aggrieved husband or wife to seek any redress for such injury, when the Constitution clearly provides that every person...

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7 cases
  • Vogts v. Guerrette
    • United States
    • Supreme Court of Colorado
    • May 2, 1960
    ...for the denial of the fundamental right to redress by those who have a just cause of action. ' (Emphasis supplied.) Daily v. Parker, D.C., 61 F.Supp. 701, 703. How astute the last quotation is may be shown by an example. A and B are partners in the conduct of a mercantile establishment. C i......
  • Pinnick v. Cleary
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • June 29, 1971
    ...Cal.App.2d 41, 168 P.2d 57; Fearon v. Treanor, 272 N.Y. 268, 5 N.E.2d 815; Clark, Law of Domestic Relations 15--22. Compare Daily v. Parker, 61 F.Supp. 701 (N.D.Ill.); Zaremba v. Skurdialis, 395 Ill. 437, 70 N.E.2d 617; and Heck v. Schupp, 394 Ill. 296, 68 N.E.2d 464, in which the Illinois ......
  • Goldberg v. Musim
    • United States
    • Supreme Court of Colorado
    • May 1, 1967
    ...as hereinafter noted. Plaintiff in error cites Heck v. Schupp, 394 Ill. 296, 68 N.E.2d 464, 167 A.L.R. 232 (1946) and Daily v. Parker, 61 F.Supp. 701 (N.D.Ill.1945) for the proposition that abolition of actions for alienation of affections violates a provision in the Illinois Constitution w......
  • O'CONNOR v. Johnson
    • United States
    • U.S. District Court — Western District of New York
    • October 28, 1947
    ...of a decedent who resided in this State." 264 N.Y. at page 384, 191 N.E. at page 25. Plaintiff's counsel cite the case of Daily v. Parker, D.C., 61 F.Supp. 701, an action by a woman citizen of Pennsylvania against a woman citizen of Illinois to recover damages for alienation of affections a......
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