Felsenthal v. McMillan

• Decision Date: 28 March 1973
• Docket Number: No. B--3485,B--3485
• Citation: 493 S.W.2d 729
• Parties: Daniel I. FELSENTHAL, Petitioner, v. Billy Wayne McMILLAN, Respondent.
• Court: Texas Supreme Court

Page 729

493 S.W.2d 729

Daniel I. FELSENTHAL, Petitioner, v. Billy Wayne McMILLAN, Respondent.

No. B--3485.

Supreme Court of Texas.

March 28, 1973.

Rehearing Denied May 23, 1973.

Smead, Roberts, Harbour, Smith, Harris & French, Jerry S. Harris, Longview, for petitioner.

Abdders & Keeling, C. A. Keeling, Nacogdoches, for respondent.

GREENHILL, Chief Justice.

This action was brought by a husband for alienation of affections and for criminal conversation because of alleged acts of sexual intercourse between the husband's wife and the defendant. The facts are set out in the opinion of the court of civil appeals. 482 S.W.2d 9. The trial court entered summary judgment for the defendant. The court of civil appeals, noting that there had been no alienation of the affections of the husband or wife as shown in their depositions, nevertheless held that the trial court erred in granting a summary judgment as to the cause of action for criminal conversation. We affirm.

The court of civil appeals correctly held that the tort of criminal conversation is part of the common law adopted by this state in Article 1 of the Texas statutes. ¹ That such tort was a part of the common law of England and as declared by the several states is set out in 1 Harper & James on Torts (1956) 609 et seq.; Restatement of Torts, Section 685; Prosser, Law of Torts (4th ed. 1971) 876 and 887; and 41 Am.Jur.2d 402 et seq.; and other authorities.

At common law, only the husband could bring the action. Because of equal rights statutes and because of a recognition of rights of equal protection, the wife also has been held to be able to maintain the action in all states where the matter has arisen. That matter is not before us, but we could not live with the action on any other basis. If the husband partakes of this conversation the wife's interests are equally infringed and her rights to legal redress must be the same. This suggests the possibility of an aggrieved husband suing a conversing husband of an aggrieved wife who also sues the conversing wife of the aggrieved husband. It is an unsavory picture. Such a suit is not a pleasant one in any context. Perhaps that is why we so seldom see a suit of this nature and perhaps the aggrieved spouse should not expect to recover anything but nominal damages in the case where the besmirched spouse has participated willingly.

Nevertheless, the petition alleges a wrong and a harm. The aggrieved spouse is surely injured whether or not the affections of the conversing spouse have been alienated. And it may be noted that rape is included in the tort of criminal conversation. Restatement of Torts, Section 685, comments b and c; and the mental anguish and other injuries to the offended spouse may be quite real.

We have found no count which has abolished the tort or refused to recognize it as part of the common law, and we decline to do so. If the Legislature, which is now in session, desires to act in the matter, that, of course, is its prerogative.

The Legislatures of 10 or 12 states have enacted 'Heart Balm' statutes to abolish the torts of alienation of affections, criminal conversation and breach of promise to marry, or one or more of such torts. ² Most of those legislative acts appear to have abolished the tort of criminal conversation. But no such action has been taken by the Texas Legislature. Such a statute was considered in 1935, but it failed to pass. See House Journal (1935) pages 1929--30.

The judgment of the court of civil appeals is affirmed.

Dissenting opinion by STEAKLEY, J., in which WALKER, POPE and DENTON, JJ., join.

STEAKLEY, Justice (dissenting).

The question here is whether the tort arising out of the offense known as criminal conversation will be recognized as actionable in Texas. I would not do so. I do not regard of particular significance whether or not we now have this right of action in Texas by adoption of the common law, as the majority says. If we have, I would abolish it.

We should recognize the offense of criminal conversation for what it is. The term 'criminal conversation,' in its general and comprehensive sense, is synonymous with 'adultery'; but in its more limited and technical signification it may be defined as adultery in the aspect of a tort. Turner v. Heavrin, 182 Ky. 65, 206 S.W. 23, 4 A.L.R. 562 (1918); Gibson v. Gibson, 240 Ark, 827, 402 S.W.2d 647, 650 (1966); Hirschy v. Coodley, 116 C.A.2d 102, 253 P.,2d 93 (1953); Rheudasil v. Clower, 197 Tenn. 27, 270 S.W.2d 345, 346, 46 A.L.R.2d 1083 (1954).

We are not concerned here with rape or with any other form of assault or battery. The wife, and in some cases the husband, undoubtedly has a right of action to recover for any injuries and harm resulting from the forcible invasion of her person. She would also have a cause of action where her consent to sexual intercourse was obtained by duress or fraud.

We are not concerned with the tort known as alienation of affections. This right of action arises when the wrongdoer, who knows that the wife is married, intentionally sets out to and does divert her affections from her husband. See Restatement, Torts, § 683. We recognized the right to recover for alienation of affections in Kelsey-Seybold Clinic v. Maclay, 466 S.W.2d 716 (Tex.1971), and should continue to do so. We are not concerned with the right of action that accrues when the wrongdoer, for the purpose of disrupting the marriage relation, induces a wife to separate from her husband or not to return to him after she has separated from him. See Restatement, Torts, § 684.

Plaintiff, Billy Wayne McMillan, and his wife, Mary Ann McMillan, were proprietors of a small bar in Longview, Texas. It was common practice for Mrs. McMillan to run the establishment alone while her husband conducted other business activities. On the night of February 25, 1971, Danny Felsenthal and a small group of other customers walked outside with Mrs. McMillan when she closed the bar at midnight. After a brief gathering outside the bar, the group disbanded and Felsenthal asked Mrs. McMillan to take a ride in his car. She did so and they went to a lake house where they stayed until early morning. Mrs. McMillan testified they had a drink and then had sexual intercourse. Felsenthal testified that drinking was their only joint activity. The episode became known to McMillan and he sued Felsenthal. He alleged that Felsenthal had alienated the affections of Mrs. McMillan and that he had committed a trespass on McMillan's right to exclusive sexual relationship with his wife.

The trial court granted Felsenthal's motion for summary judgment grounded on the deposition testimony of the principals involved. Mrs. McMillan said in her deposition that she still loves her husband and wishes to stay with him. In his deposition, McMillan expressed satisfaction that the meeting of his wife with Felsenthal was unplanned, and that his wife's affections were not alienated.

The Court of Civil Appeals concluded that an action for alienation of affections would not lie under these facts; but that McMillan's pleadings, together with the deposition evidence, were sufficient to support a cause of action for criminal conversation. The case was reversed and remanded for trial of this. 482 S.W.2d 9.

Our question, then, is whether a husband is entitled to recover from one with whom the wife has willingly had sexual relations and where the husband sustains no further loss. The marriage is intact. The wife's affection for her husband has not been diminished or diverted. At common law and in other jurisdictions where a cause of action is recognized in favor of the husband under these circumstances, consent of the wife is no defense. The fact that the wrongdoer did not know the wife was married but believed her to be single is not a defense. The fact that the wife represented herself as single is not a defense. The fact that the wife was the aggressor is not a defense. The fact that she has been neglected or mistreated by her husband is not a defense. The fact that she and her husband were separated through his...