Bean v. McFarland, 156.
| Decision Date | 21 May 1937 |
| Docket Number | No. 156.,156. |
| Citation | 273 N.W. 332,280 Mich. 19 |
| Parties | BEAN v. McFARLAND. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Action by Edgar H. Bean against William J. McFarland. From a ruling of the court striking out the second count of his declaration, plaintiff appeals.
Affirmed.
Appeal from Circuit Court, Oakland County; Frank L. Doty, judge.
Argued before the Entire Bench.
Frederic T. Harward and George E. Day, both of Detroit, for appellant.
Preston Allen and Sherman McDonald, both of Royal Oak, for appellee.
Plaintiff brought this action against the stepfather of his wife, charging him, in the first count of the declaration, with alienation of the affections of his wife, and in the second count with criminal conversation. Upon motion of defendant the Court struck out the second count and plaintiff prosecutes this appeal from the ruling.
Act No. 127, Public Acts 1935, abolished the common-law actions of alienation of affections, criminal conversation, seduction, and breach of contract to mary, with this saving clause: ‘* * * Provided, however, That the provisions of this act shall not apply to suits for alienation of the affections of a husband or wife against a defendant who is a parent, brother, sister or person in loco parentis of the plaintiff's spouse.’ Section 2.
The criminal conversation, averred in the declaration, was subsequent to the effective date of the act abrogating such an action.
Plaintiff contends that the relation of defendant to his wife saves the second count as well as the first.
Alienation of affections and criminal conversation are separate and distinct wrongs. Perry v. Lovejoy, 49 Mich. 529, 14 N.W. 485.
A civil action to recover damages for criminal conversation was afforded at common law.
Blackstone in the Commentaries states: ‘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 an action of trespass vi et armis against the adulterer, wherein the damages recovered are usually very large and exemplary.’
The proviso is silent upon the abolished action of criminal conversation.
Counsel for plaintiff also contends that if the act be held to abolish the common-law action for criminal conversation it is unconstitutional. The Constitution of this state provides: ‘The common law and ...
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