Cunningham v. Edward

• Decision Date: 11 March 1936
• Citation: 52 Ohio App. 61,3 N.E.2d 58
• Parties: CUNNINGHAM et al. v. EDWARD.
• Court: Ohio Court of Appeals

3 N.E.2d 58

52 Ohio App. 61

CUNNINGHAM et al. v. EDWARD.

Court of Appeals of Ohio, Ninth District, Summit.

March 11, 1936

Syllabus by the Court .

A husband, who, under the law, would receive his wife's property if she died intestate, and who, by threats made to his wife, caused her not to execute a will leaving some of her property to her sister, which such wife would have done but for such thereats, did not invade any legal right of said sister, and therefore is not liable to said sister in an action in tort for damages for preventing said wife from making a gift to her.

Deibel, Price & Elbrecht and Jos. G. Ehrlich, all of Cleveland, and Slabaugh, Seiberling, Huber & Guinther, of Akron, for plaintiff in error.

Lewis D. Slusser, of Akron, for defendant in error.

WASHBURN, Judge.

For the sake of brevity we will consider this case as though Jessie Cunningham, one of the plaintiffs in the common pleas court was the sole plaintiff therein; in which court it was determined that her petition against James P. M. Edward did not set forth facts sufficient to constitute a cause of action. Said Jessie Cunningham not desiring to plead further final judgment dismissing her petition at her costs was entered.

For the purpose of considering the question to be decided, the facts alleged in the petition will be stated as briefly as possible. They are that James P. M. Edward was the husband of Catherine Edward, and that if Catherine Edward died intestate, her property would pass to her said husband; that Jessie Cunningham was the sister of Catherine Edward, and that Catherine Edward desired to make a will giving a part of her property to her said sister, Jessie Cunningham, and that Jessie Cunningham and said husband each knew of said desire of Catherine Edward; that on August 11, 1930, Catherine Edward, who was then confined to her bed with sickness, had in her possession a written instrument which she had signed, bearing date of November 17, 1929, and purporting to be her last will, and providing for a legacy to Jessie Cunningham, but which instrument was not subscribed by any witness; that on said 11th day of August, 1930, Catherine Edward, while of sound mind and memory, exhibited said writing to Jessie Cunningham and asked her to summon two persons to come to her presence to act as witnesses to complete the execution of said instrument; that thereupon her said husband, James P. M. Edward, being aware of her intention to duly execute said instrument as a will, ‘ then and there threatened, in a menacing manner, to blow out the brains of any one who attempted to take away from him any property belonging to’ Catherine Edward; that said threats were of such a menacing character as to intimidate and threaten Catherine Edward, so that she countermanded her request to Jessie Cunningham to summon said witnesses, and announced that ‘ she would herself take care of the due execution of said instrument as soon as she had recovered sufficiently from her illness to see to the due execution thereof’ ; that thereafter Catherine Edward continued, until her death on August 17, 1930, ‘ to entertain a settled purpose and intent properly to execute said instrument as a will, but was prevented from the due and full execution of the same as her last will solely and only by fright and fear, induced and caused by said wrongful and unlawful duress of’ said husband; and that the assets of the estate of Catherine Edward were in excess of the amount of said proposed legacy to Jessie Cunningham.

The petition asked for a judgment against said husband for the amount of said proposed legacy, with interest.

The controlling question to be determined is as to whether said acts of said husband constituted an invasion of a legal right of Jessie Cunningham, and it does not call for any consideration of the general class of torts wherein is involved the element of a duty owed to the plaintiff by the defendant, and in which negligence in the performance or failure to perform is an important consideration.

To constitute an actionable tort where there is no violation of a legal duty of the defendant, there must be an invasion of a legal, as distinguished from a moral, right of the plaintiff, for it is clear that there are many moral wrongs for which there is no legal remedy.

There are many acts done in the exercise of individual rights which occasion loss to others, which nevertheless afford no subject of legal redress. The line which separates this class of acts from those which form the subjects of legal redress is often shadowy and indistinct. It rests frequently on grounds of public policy, or upon the mere force of authorities, rather than upon any clear or well-defined principle.

The general statement that where there is fraud of one party and injury to another, an action in tort will lie, must be understood with such qualifications and limitations as other principles of law equally sound necessarily impose; unless so understood, such general statement cannot safely be applied as a test by which to determine whether the facts in a given case constitute an actionable wrong.

If no legal right of Jessie Cunningham was invaded, the fact that said husband, in protecting and furthering his own interests and preventing his wife from completing a gift which she desired to make, acted with malice towards Jessie Cunningham, would not enlarge his responsibility to Jessie Cunningham.

It is conceded that the wife had a perfect right to make a gift to her sister, but in this suit the husband's conduct was not necessarily a wrong against Jessie Cunningham simply because it was wrong as against his wife; as against Jessie Cunningham the husband had at least as much right as she had to desire that Catherine Edward should give her property to him, and as against Jessie Cunningham he had a right to further and protect his own interests, and therefore, as against her, so far as the question of actionable tort is concerned, it is immaterial that he was motivated by malice towards her.

The general statement that intentional injury without justification creates liability does not solve the problem, for that statement presupposes that the injury complained of flows from the violation of a legal right.

In transactions similar to that involved in the instant case it has been repeatedly held that there is no actionable wrong unless there was an invasion of a legal right of the plaintiff; in that connection a legal right is one that the law recognizes as so...