Johnson v. Luhman

• Decision Date: 05 March 1947
• Docket Number: Gen. No. 10134.
• Parties: JOHNSON et al. v. LUHMAN.
• Court: United States Appellate Court of Illinois

330 Ill.App. 598

71 N.E.2d 810

JOHNSON et al.

v.LUHMAN.

Gen. No. 10134.

Appellate Court of Illinois, Second District.

March 5, 1947.

Appeal from Circuit Court, Winnebago County; Ralph J. Dady, Judge.

Action by Edward Johnson and others against Lydia Luhman to recover for the alienation of the affections of the plaintiffs' father, depriving them of his support and society. From a judgment of dismissal, the plaintiffs appeal.

Judgment reversed, and cause remanded.

Raphael E. Yalden, of Rockford, for appellants.

B. Jay Knight, Frederick H. Haye and Thomas A. Keegan, all of Rockford, for appellee.

BRISTOW, Justice.

This is an appeal from an order of the circuit court of Winnebago County dismissing the complaint filed by five minor children by their mother, Leone Johnson, against the defendant. Lydia Luhman, for alienating the affections of their father and depriving them of his support and society. The appeal is predicated solely upon the pleadings which consist of the complaint and the motion to dismiss.

The complaint alleges, in substance, that for over 15 years Leone Johnson and her husband, Vincent Joseph Johnson, lived together, raised their family of five children, and possessed an income of not less than $5,000 a year. On July 13, 1944, the defendant, Lydia Luhman, who, professedly, had been a family friend for over three years, induced and enticed the said Vincent Joseph Johnson to desert his wife and minor children and to breach his legal duties to his family.

It is further alleged that he had remained with the defendant and apart from his family since the aforementioned date, and has made no financial contribution to the support of his children except as he has been compelled to do under the terms of a recent court order in another cause. The children contend, therefore, that the conduct of the defendant in alienating the affections of their father and enticing him away from home has deprived them of their rights to support and maintenance, to his paternal care, and to the security of a family life, for which they seek damages in the sum of $25,000 each.

Defendant's motion to dismiss the complaint asserts that no cause of action is set forth therein, inasmuch as at common law a child had no right of action against a third person for enticing a father to leave home, and no such right has been created by the Illinois legislature. It is contended further that the ‘Heart Balm Act,’ (pars. 246.1, 2, ch. 38, Ill.Rev.Stats.) bars such an action; and that there is no allegation in the complaint that the father failed to comply with court order in another cause requiring him to contribute to the support of the children, hence they have sustained no damages of which a court may take cognizance.

From the order of the circuit court sustaining defendant's motion to dismiss, plaintiffs have appealed to this court.

It is readily conceded by the parties that this cause is novel in this state, and that the issue of whether minor children can recover damages from one who has enticed their father away from home and deprived them of his support and society has never been determined by the Illinois courts. Both parties to this cause, therefore, attempt to draw analogies from other legal concepts appertaining to the parent-child relationship and to revered canons of construction enunciated by the courts and by legal scholars, in support of their respective contentions.

Before proceeding to determine the rights of the parties, and to judiciously resolve the legal problem as one of first impression, the court will review the decisions of other jurisdictions where the precise issue has been determined. While those decisions obviously do not constitute binding precedent upon this court, they, nevertheless, warrant analysis and comment.

In Morrow v. Yannantuono, 1934, 152 Misc. 134, 273 N.Y.S. 912, the New York district court, in a brief and cursory opinion, dismissed a suit by a minor against a person enticing the mother away from home on the ground that the husband had a cause of action, and that to uphold the complaint would open the courts to a flood of litigation. It is apparent, however, that any common law action could be the subject of abuse which, if unchecked by the court, could provoke a flood of litigation, hence such specious reason can be summarily dismissed.

No reference is made to that decision in the recent case of Daily v. Parker, 7 Cir. 1945, 152 F.2d 174, 162 A.L.R. 819, where minor children living in Pennsylvania brought an action for damages in a federal court against a woman living in Illinois for alienating the affections of their father and inducing him to leave home and live with her. Judge Evans of the Seventh Circuit Court of Appeals, in reversing the order of the district court dismissing the complaint, held that a child has an enforcible right against one who has invaded and taken from such child the support and maintenance of its father, as well as for the destruction of other rights which arise out of the family relationship.

The court approached the problem by analyzing the rights and obligations of all who are parties to a family, and, after a succinct and accurate review of the development of the family as reflected in the law, concluded that the status of the wife and children, and their respective roles within the family unit, have changed substantially, and warranted the recognition of the rights asserted by the plaintiff-minors therein. The opinion recognized, however, that courts have been slow to reflect this change, but emphasized that they have belatedly applied established principles to newly accepted views of the family, and the status of each member, and by such decisions have made law. Grable v. Margrave, 4 Ill. 372, 38 Am.Dec. 88;Yundt v. Hartrunft, 41 Ill. 9;Betser v. Betser, 186 Ill. 537, 58 N.E. 249,52 L.R.A. 630, 78 Am.St.Rep. 303;Walgreen Co. v. Ind. Com., 323 Ill. 194, 153 N.E. 831, 48 A.L.R. 1199;Milliken v. Long, 188 Pa. 411, 41 A. 540; Kine v. Zuckerman, 4 D. & C. Pa., 227; Graham v. Wallace, 50 App.Div. 101, 63 N.Y.S. 372;Bennett v. Bennett, 116 N.Y. 584, 23 N.E. 17,6 L.R.A. 553;Waldron v. Waldron, C.C.Ill., 45 F. 315.

In the course of this analysis the court embraced the philosophy of judicial empiricism, expounded by Dean Pound in, ‘The Spirit of the Common Law’, whereby courts should interpret the common law as sufficiently elastic to meet changing conditions, even though that process is tantamount to law-making by judicial decision.

In this vein Judge Evans stated unequivocally at p. 177 of 152 F.2d: ‘Because such rights have not heretofore been recognized, is not a conclusive reason for denying them.’

This decision stimulated and provoked numerous controversial legal studies, in which a variety of legal fictions and concepts were offered on which liability might have been predicated. 13 U.Chi.L.Rev. 375; 41 Ill.L.Rev. 447; 59 Harv.L.Rev. 297; 46 Col.L.Rev. 464; 15 Ford.L.Rev. 126. It was suggested, therein, that plaintiffs' cause of action in this federal case might have been predicated upon: (1) the established doctrine of Lumley v. Gye, (1853) 2 E. & B. 216, whereby a third person who induces the promissee to breach a contract is liable to the promissor, inasmuch as the defendant therein induced the father to breach his duty (founded on status rather than contract) to his child, or (2) under the broad principle enunciated in Wilkinson v. Downton (1897) 2 Q. B. 57, that unjustifiable wilful conduct which results in harm to plaintiff is actionable, or (3) for the unlawful interference with a ‘relational interest’; or (4) as a contributing tortfeasor, or (5) by analogy to actions by spouses for alienation of affections, which are now generally based upon an invasion of the marital relation rather than upon the husband's property right to consortium.

It is the opinion of this court, however, that the frank recognition by the Circuit Court of Appeals that the cause was without precedent, but that, nevertheless, the common law was sufficiently flexible to protect what are presently regarded as family rights under our social standards and conceptions of the family unit, is more conducive to the development of unambiguous legal precepts, than if the court had invoked some legal fiction to accomplish what it deemed to be a desirable result.

This decision, moreover, is consistent with the principles of law propounded by the highest court of our state in the recent case of Heck v. Schupp, 1946, 394 Ill. 296, 68 N.E.2d 464.

Although the ratio decidendi of the Heck case, supra, is that a husband may sue a third person for alienating the affections of his wife, and that a statute prohibiting...