Gibson v. Gibson

• Decision Date: 09 May 1966
• Docket Number: No. 5--3904,5--3904
• Citation: 402 S.W.2d 647,240 Ark. 827
• Parties: Sarah K. GIBSON, Appellant, v. Elizabeth (Scott) GIBSON, Appellee.
• Court: Arkansas Supreme Court

Page 647

402 S.W.2d 647

240 Ark. 827

Sarah K. GIBSON, Appellant, v. Elizabeth (Scott) GIBSON, Appellee.

No. 5--3904.

Supreme Court of Arkansas.

May 9, 1966.

Rehearing Denied June 6, 1966.

Arnold & Hamilton, Crossett, for appellant.

John F. Gibson, Dermott, for appellee.

COBB, Justice.

In Gibson v. Gibson, 234 Ark. 954, 356 S.W.2d 728 (1962), we determined that appellant, then Mrs. Gibson, was entitled to a decree of absolute divorce, having established her charge of adultery against her spouse. This case is somewhat of a sequel in that appellant is now suing the present Mrs. Gibson, a co-respondent in the former divorce action, for damages by reason of alleged silenation of the affections of appellant's former husband.

Appellee filed a motion to dismiss appellant's complaint on the ground that the cause of action is barred under Ark.Stat.Ann. § 37--201 (Repl.1962), a one-year statute of limitations. The trial court heard the motion and entered an order of dismissal of the complaint under said statute of limitations. No language appears in the motion for dismissal, or in the order of the court granting same, which indicates that any other statute of limitations was either considered or relied upon for said dismissal.

Appellant is here on appeal urging that said one-year statute of limitations is not applicable to the instant case and that the trial court erred in dismissing the complaint by invoking said statute. Appellant further contends that the proper statute of limitations applicable in this case is a five-year statute, Ark.Stat.Ann. § 37--213 (Repl.1962).

Appellce contends for affirmance that the one-year statute of limitations specifies its applicability to cases of criminal conversation (adulterous conduct) and that the words 'criminal conversation' in the said statute include actions for alienation of affections so as to bring such actions within said statute.

The dispositive question on this appeal is which of the two statutes of limitations is applicable in this case. Said statutes of limitations are brief, and we set them forth in full.

'37--201. Actions which must be brought in one year--Tort actions.--The following actions shall be commenced within one (1) year after the cause of action shall accrue, and not after: first, all (special actions on the case), (actions) for criminal conversation, assault and battery and false imprisonment; second, all actions for words spoken slandering the character of another; third, all words spoken whereby special damages are sustained.'

'37--213. Actions not otherwise provided for--Five years.--All actions not included in the foregoing provisions shall be commenced within five (5) years after the cause of action shall have accrued.'

Counsel for the parties have not called our attention to any causes decided by us on this point and the issue, therefore, appears to be one of first impression. We have explored decisions of other jurisdictions along with publications of recognized legal authorities relating to this question.

We note at the outset of this discussion that this court has many times expressed its reluctance to apply a statute of limitations to actions not specifically enumerated therein. In Breining v. Lippincott, 125 Ark. 77, 187 S.W. 915 (1916), we had under review an action by a mother to recover damages which arose as a result of the seduction of her daughter, and it was there contended that the action was barred by the one-year statute of limitations as being included in the language 'criminal conversation.' We quote from that opinion, wherein we rejected this contention:

'It follows that the one-year statute, as it has been construed by this court, is applicable only to those actions that are specifically enumerated therein.

'The statute is plain, and the intent of the Legislature must be gathered from the words used, and where the words used are unambiguous, courts cannot add to or take from them their obvious meaning. The Legislature used the specific term 'criminal conversation,' which had a well-defined meaning.'

We observe here that the one-year statute, Ark.Stat.Ann. § 37--201 (Repl.1962), does not enumerate or make any specific reference to causes of action for ailenation of affection.

Appellee has referred us to only one case holding that an action for alienation of affections is included in a statute of limitations which specifically enumerated criminal conviction but not alienation of affections. Rheudasil v. Clower, 197 Tenn. 27, 270 SW.2d 345, 46 A.L.R.2d 1083 (1954).

In an early Illinois case, Bassett v. Bassett, 20 Ill.App. 543 (1886), the court held that enticement and alienation of the spouse was not barred by the statute of limitations applicable to criminal conversation. The Illinois court said:

'Applying the familiar principle that the statute does not bar a cause of action unless it comes clearly within its provisions, we are of the opinion that the section relied upon is not broad enough to include the present case.'

In a New York case directly in point, Deming v. Leising, 214 App.Div. 398, 212 N.Y.S. 213 (1925), the court clearly distinguished between the two separate torts of alienation of affection and criminal conversation. A headnote taken from that decision states:

'Complaint alleging that defendant 'undertook to alienate the affection of plaintiff's wife and to accomplish his purpose' acquired improper influence of her, debauched and carnally knew her, enticed her away from plaintiff's residence, and has since harbored her without plaintiff's consent, thereby depriving plaintiff of the comfort, society, aid, and services of his wife, held to state cause of action for alienation of affection, and not one for criminal conversation to which the two years' statute of limitations was (a) bar.'

We quote from the Deming opinion:

'The gist of the wrong is the invasion of plaintiff's right of consortium--the right to conjugal fellowship, whether of husband or wife, to his or her company, co-operation, and aid in every conjugal relation. The means by which the evil result may be brought about are as varied and as wonderful as the way of a man with a maid. Adultery is but one of them.

'In criminal...