Antonelli v. Xenakis

• Decision Date: 14 November 1949
• Citation: 363 Pa. 375,69 A.2d 102
• Parties: ANTONELLI v. XENAKIS.
• Court: Pennsylvania Supreme Court

69 A.2d 102

363 Pa. 375

ANTONELLI v. XENAKIS.

Supreme Court of Pennsylvania

November 14, 1949

Argued September 26, 1949

Appeal, No. 210, March T., 1949, from order of Court of Common Pleas of Allegheny County, April T., 1949, No. 3450 in case of John Antonelli v. Alex Xenakis. Order affirmed.

Trespass.

Defendant's preliminary objections dismissed, before EGAN, ADAMS and MONTGOMERY, JJ., opinion by EGAN, J. Defendant appealed.

Order affirmed.

Sebastian C. Pugliese , with him Lewis J. Nescott , for appellant.

Zeno Fritz , with him Frank J. Zappala , for appellee.

Before MAXEY, C.J., DREW, LINN, STERN, PATTERSON, STEARNE and JONES JJ.

OPINION

MR. JUSTICE JONES

The plaintiff sued in trespass to recover damages from the defendant for the latter's alleged criminal conversation with the plaintiff's wife. The defendant filed preliminary objections which questioned the court's jurisdiction on the grounds that the cause of action, as pleaded by the plaintiff, was for alienation of affections and that the Act of June 22, 1935, P.L. 450, Sec. 1, as amended by the Act of June 25, 1937, P.L. 2317, Sec. 1, 48 PS § 170, abolished such actions save in certain instances not presently material. The learned court below held ^[1] that the gravaman of the complaint was criminal conversation and that a right of action therefor was not abolished by the Act of 1935, cit. supra. An order dismissing the defendant's preliminary objections was accordingly entered from which the defendant appeals.

The common law has long furnished an aggrieved husband with a right of action against his wife's adulterer for criminal conversation. Blackstone's Commentaries (Lewis' Ed.), Book 3, pp. * 139, lists "adultery , or criminal conversation" as one of the three principal "Injuries that may be offered to a person, considered as a husband,..." and goes on to state that "Adultery , or criminal conversation with a man's wife, though it is, as a public crime, left by our laws to the coercion of the spiritual courts; yet, considered as a civil injury (and surely there can be no greater,) the law gives a satisfaction to the husband for it by action of trespass vi et armis against the adulterer...." In Tinker v. Colwell , 193 U.S. 473, 481-485, Mr. Justice PECKHAM, speaking for the Supreme Court of the United States on a question as to whether a judgment for criminal conversation is released by the defendant's discharge in bankruptcy, considered at length the nature of the tort, reviewed cases from England and from various States of the Union and confirmed that, at common law, a husband has a separate right of action for criminal conversation.

Section 685 of the Restatement, Torts, specifically affirms the existence of a cause of action for criminal conversation as distinguished from an action for alienation of affections which is treated with in § 683. The fact that both of such causes may be joined in one suit is merely a matter of procedural permission: Restatement, Torts, § 683, Comment c. And, while the liability in the two actions is, in general, the same, viz., "for the harm thereby caused to any of [the husband's] legally protected marital interests" (compare § 683 and § 685 of the Restatement, Torts), the causes represent nonetheless two distinct torts, -- "one may exist without the other." See Corpus Juris Secundum, Vol, 42, p. 320, § 668, where it is also pointed out that "The lack of necessity for a physical debauchment distinguishes alienation of affections from criminal conversation." And, a single act of adultery is sufficient to entitle the husband of the woman to damages in an action against the adulterer for criminal conversation even though the husband sustains no further loss: see § 683, Comments c. and § 685, Comment b. of the Restatement, Torts. On the other hand, sexual intercourse between the wife and an alienator of her affections is not a requisite to an action for damages for the husband's consequent loss: Restatement, Torts, § 683, Comment c. Knowledge or belief that a woman is married is essential to liability for alienation of her affections while such knowledge is not necessary to liability for criminal conversation with her. A man who has sexual relations with a woman, not...