Kane v. Quigley

Decision Date29 December 1964
Docket NumberNos. 38584,38585,s. 38584
Citation203 N.E.2d 338,1 Ohio St.2d 1
Parties, 30 O.O.2d 1 KANE, a Minor, Appellant, v. QUIGLEY, Appellee (two cases).
CourtOhio Supreme Court

Syllabus by the Court

A petition by a minor child, alleging that a defendant wrongfully induced the plaintiff's father to abandon his family thereby (1) depriving the plaintiff of his father's affection, companionship and guidance and (2) bringing unwanted attention and unwarranted publicity causing embarrassment, humiliation and loss of social standing to the plaintiff, is subject to demurrer on the ground that it fails to state a cause of action.

Plaintiffs, who are minors, acting through their mother as next friend, instituted suits in the Common Pleas Court of Cuyahoga County, alleging that the defendant had wrongfully induced their father to abandon his family, and that, as a result thereof, they were deprived of his affections.

Demurrers to both petitions were sustained on the ground that no cause of action was stated.

The petitions were amended to include allegations of present unwanted notoriety caused by the defendant's wrongful actions.

Demurrers to both petitions were again sustained.

Judgments were entered for defendant, and these judgments were affirmed by the Court of Appeals.

The causes are before this court upon allowance of motions to certify the records.

John L. Dowling, Cleveland, for appellants.

Ward & Kennedy and Thomas C. Ward, Cleveland, for appellee.

O'NEILL, Judge.

The question presented is whether a minor child, acting through a parent as next friend, can maintain an action against a third party for wrongfully disrupting the family circle and depriving the child of affection, companionship and guidance of his father, and for bringing unwanted attention and unwarranted publicity to the child, causing him embarrassment, humiliation and loss of social standing.

There is no statutory basis for such a cause of action in Ohio.

Such an action is not known at common law.

At common law, the benefits and duties accruing as a result of the family relationship are deemed to be social rather than legal.

Some jurisdictions allow such a cause of action on the theory that the common law is sufficiently flexible to be adaptable to modern concepts of family obligations. This is the minority view. See Daily v. Parker (C.C.A. 7, 1945), 152 F.2d 174, 162 A.L.R. 819; Johnson v. Luhman (1947), 330 Ill.App. 598, 71 N.E.2d 810; Miller v. Monsen (1949), 228 Minn. 400, 37 N.W.2d 543. Under this minority rule, the child is entitled to benefits of the marital relation as is the spouse.

In Ohio, an action by the spouse against a third party is maintainable. Westlake v. Westlake (1878), 34 Ohio St. 621; Flandermeyer v. Cooper (1912), 85 Ohio St. 327, 98 N.E. 102, 40 L.R.A.,N.S., 360. The basis for such action is the right of consortium or conjugal society, a right growing out of the marital relation and limited to the spouse. No right of consortium exists between a parent and child. See Whitcomb v. Huffington (1956), 180 Kan. 340, 304 P.2d 465; Morrow v. Yannantuono (1934), 152 Misc. 134, 273 N.Y.S. 912; Garza v. Garza (Tex.Civ.App.1948), 209 S.W.2d 1012.

A child may indeed expect that his parent will have affection for him. This may be a moral obligation, but no legal obligation exists. The sole legal obligation imposed upon the parent is that of support. See Sections 2151.42, 3103.03 and 3109.05, Revised Code. See, also, Henson v. Thomas (1949), 231 N.C. 173, 175, 56 S.E.2d 432, 434, 12 A.L.R.2d 1171; Lucas v. Bishop (1954), 224 Ark. 353, 273 S.W.2d 397.

Several reasons have been advanced as justifying the refusal to allow recovery by children, i. e., that this invades the province of the Legislature, that there is a danger of multiplicity of suits, that there is a possibility of fraud, and that it would place the love and affection of the parent on a commercial basis. Taylor v. Keefe (1947), 134 Conn. 156, 56 A.2d 768; Whitcomb v. Huffington, supra; Henson v. Thomas, supra; Morrow v. Yannantuono, supra; Nelson v. Richwagen (1950), 326 Mass. 485, 95 N.E.2d 545; Gleitz v. Gleitz (1951), 88 Ohio App. 337, 98 N.E.2d 74; Scholberg v. Itnyre (1953), 264 Wis. 211, 58 N.W.2d 698.

If there is a legal right to maintain an action, this court is bound by Section 16, Article I, Constitution of Ohio, to provide a forum to administer justice.

There is no legal right in a child to maintain such an action for alienation of affections since that cause of action is based upon the right of consortium.

On the facts of these cases, no cause of action has been stated for invasion of privacy. Housh v. Path (1956), 165 Ohio St. 35, 133 N.E.2d 340, recognized that such a right existed in Ohio. It was not the purpose of the court, in recognizing the right of privacy in Ohio, to extend it to all cases in which a person may be subjected to unwanted notoriety.

No affirmative act was directed toward the plaintiffs in these cases and the resultant publicity was merely an incident of the alleged actions of the defendant. The invasion of the right to privacy may be defined in part as the wrongful intrusion into one's private activities. It is clear that the defendant, while she may have disrupted the family circle to which plaintiffs belong, did not actually intrude personally upon the solitude of the plaintiffs.

As to the third theory upon which plaintiffs attempt to predicate a cause of action, malicious procurement of a breach of a third-party beneficiary contract, there is no authority in Ohio law to sustain such a contention.

The marital contract is the subject of statute. It is provided in Section 3103.01, Revised Code, that 'husband and wife contract towards each other obligations of mutual respect, fidelity, and support.' Each spouse thus has contractual rights and obligations toward the other spouse. These rights may be enforced in an action for damages against anyone who wrongfully and maliciously interferes with the marital relationship and thereby deprives one of the society, affection and consortium of the other. Flandermeyer v. Cooper, supra.

Under the provisions of Section 3103.03, Revised Code, the husband has a duty to support his wife and minor children. Under Section 3109.05, Revised Code, the court may order either or both parents to support or help support their children. See, also, Section 2151.42, Revised Code.

The basis of this cause of action against an enticer who has disrupted the family must rest upon the marital contract. A spouse is the sole beneficiary of that contract. Therefore, the cause of action must fail.

The judgments of the Court of Appeals are, therefore, affirmed.

Judgments affirmed.


GIBSON, Judge (dissenting).

In my opinion, these minor plaintiffs have stated facts sufficient to constitute a cause of action against a third person for enticing one of their parents away from their home. As the cases are before this court on demurrers to plaintiffs' amended petitions all their allegations must be taken as true. Except for their references to the respective plaintiffs, the amended petitions, relative to the defendant's alienation of their father's affections, allege:

Plaintiff further says that until the occurrence of the matters hereinafter complained of * * * that the plaintiff received the love and affection of both her father and mother.

'Plaintiff further says that on or about the 1st day of April, 1961, the defendant commenced and pursued a course of conduct which was wrongful, willful and malicious, designed and intended to estrange the plaintiff's father from plaintiff's mother and from the plaintiff and her brother; that the said course of conduct was intended to alienate the affection which plaintiff's father had for his family, including the plaintiff, and that said course of conduct did alienate and destroy the affections which plaintiff's father had for his family, including the plaintiff.

'Plaintiff further says that in August of 1961, defendant commenced to commit adultery with the plaintiff's father with the willful and deliberate intention of alienating his affections for his family, including this plaintiff, and from such time defendant and plaintiff's father have frequently joined in adultery with each other, and as a result thereof, he became estranged toward his family, including the plaintiff, and abandoned them.

'Plaintiff further says that, without the consent or approval of plaintiff's mother, the defendant, about the month of April, 1961, began to associate the plaintiff's father, frequently dining with the plaintiff's father, meeting the plaintiff's father at diverse places, bestowing her attention and affections upon plaintiff's father, presenting gifts to plaintiff's father, and by other devices, methods and artifices, attempted to win the affections of plaintiff's father.

'Plaintiff further says that defendant knew at all such times that the plaintiff's father was married to her said mother; that defendant knew that the conjugal relationship of plaintiff's father and plaintiff's said mother was not severed; that defendant knew that plaintiff's father was residing in harmony with plaintiff's said mother and family, including this plaintiff.

'Plaintiff further says that, on or about the 12th day of October, 1961, as a proximate result of the aforesaid conduct of defendant, the plaintiff's said father left plaintiff's said mother and family, including this plaintiff, and ceased living with them.

'Plaintiff further says that, on or about the 17th day of November, 1961, the plaintiff's said father was willing and ready to return to the plaintiff's said mother and his family, including this plaintiff, and resume his status as husband, father, and cohabiting head of the family, including this plaintiff; that, at the said date, plaintiff's mother was willing and ready to condone and forgive the...

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