Broidioi v. Hall

• Decision Date: 11 March 1949
• Citation: 218 S.W.2d 737,188 Tenn. 236
• Parties: BROIDIOI v. HALL.
• Court: Tennessee Supreme Court

218 S.W.2d 737

188 Tenn. 236

BROIDIOI v. HALL.

Supreme Court of Tennessee.

March 11, 1949

Error to Circuit Court, Fentress County; William I. Davis, Judge.

Suit for criminal conversation and alienation of wife's affections, by W. L. Hall against Richard A. Broidioi. Judgment for plaintiff for $750, which was approved by the court of appeals and defendant brings certiorari.

Reversed and case dismissed.

H. N. Wright, Robert F. Turner and Ward R. Case Jr., all of Jamestown, for plaintiff in error.

J. B Reagan, of Jamestown, and E. G. Tollette, of Crossville, for defendant in error.

GAILOR Justice.

This is a suit for damages brought by Hall against Broidioi, (1) for criminal conversation, and (2) alienation of Hall's wife's affections. In the Trial Court judgment was rendered for the plaintiff in the sum of $750, and that judgment has been approved by the Court of Appeals. We granted certiorari, have heard argument and the case is before us for disposition.

To support the petition for certiorari, there were three assignments of error but we find it necessary to consider only the first, which is,--that the cause of action was barred by the one-year statute of limitation, Code section 8595. The declaration, as amended, based the right of action on alleged criminal conversation so that the further charge of alienation of affections was incidental Stepp v. Black, 14 Tenn.App. 153, 156, and was only to be considered in aggravation of damages. Darnell v. McNichols, 22 Tenn.App. 287, 122 S.W.2d 808. The declaration was not divided into counts as in Stepp v. Black, supra, and there was no count based specifically on alienation of affections 'with malice or improper motives.' The applicable statute of limitations was, therefore, clearly that contained in Code section 8595, for criminal conversation. Both the Trial Judge and the Court of Appeals have correctly applied that statute of limitations to this action.

We agree with the Court of Appeals that 'loss of consortium,' which is the basis of the action, is gradual and not in the usual case, to be fixed as having occurred at a specific date or instant. But we are convinced that the statute of limitations begins to run when from the conduct of the erring spouse, or otherwise, the other spouse knows that he or she has a cause of action, or as Chief Justice Neil put it in Henwood v. McCallum & Robinson, Inc., 179 Tenn. 531, at page 535, 167 S.W.2d 981, at page 982: '* * * the courts uniformly hold that a right of action generally accrues when the complainant can bring suit to recover a sum of money * * *.'

It results that, though we agree with the two lower Courts that the statute contained in section 8595 of the Code is applicable, we disagree with them in fixing the time at which the right of action accrued under the statute.

No issue of fact was left for the determination of the jury, but the point was concluded by the testimony of the plaintiff, himself. He testified (1) that before he moved his wife and five children on to the defendant's farm, he knew that his wife and the defendant were attracted to one another, as he had seen them together. (2) That he, nevertheless, tendered his wife for further contact with the defendant by moving on to the defendant's farm as a tenant in 1940, and that shortly thereafter, but continuously, he had evidence of the intimacy of the relation of his wife with the defendant. The following testimony of the plaintiff is conclusive upon the point:

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