Marra v. Bushee, Civ. A. No. 5665.

• Decision Date: 14 September 1970
• Docket Number: Civ. A. No. 5665.
• Parties: Helen MARRA v. Esther BUSHEE.
• Court: U.S. District Court — District of Vermont

317 F. Supp. 972

Helen MARRA v. Esther BUSHEE.

Civ. A. No. 5665.

United States District Court, D. Vermont.

September 14, 1970.

John T. Conley, and John C. Deppman, Conley & Foote, Middlebury, Vt., for plaintiff.

John A. Dooley, III, Burlington, Vt., Joseph Goldberg, Grand Forks, N. D., and W. Averell Brown, Bennington, Vt., Vermont Legal Aid, Inc., for defendant.

OPINION AND ORDER

LEDDY, Chief Judge.

This is an alienation of affections and criminal conversation case. Trial was by jury and on June 19, 1970, a verdict was returned for the plaintiff in the sum of nine thousand (9,000) dollars. At the close of the plaintiff's case, defendant moved for a directed verdict on the ground that under the applicable conflicts of law rule of the State of Vermont, the law of New York governs this cause of action and New York has abolished the cause of action of alienation of affections and criminal conversation. The motion was held in abeyance. On June 29, 1970, the defendant filed a motion for a judgment notwithstanding the verdict and a motion for a new trial.

The gravamen of the motion for a judgment notwithstanding the verdict is the same as the previous motion for a directed verdict. First, I shall consider this motion and then the motion for a new trial.

Defendant's motion for a judgment notwithstanding the verdict involves several choice of law questions which may be grouped into two basic contentions.

First, the defendant maintains that under the traditional lex loci delecti test the court must look to the law of the place of the injury which, according to the defendant, is New York.

Second, the defendant contends that the modern significant relationship test adopted by the Vermont Supreme Court for application to contractual choice of law problems should also be used in the case of an intentional tort; and, that New York is the state with the most significant relationship to the present causes of action.

Although this court is inclined to agree with the defendant that the Vermont Supreme Court would follow the modern test, set out in Restatement 2d, Conflict of Laws § 154 (Proposed Draft, Part II 1968), the problem is academic because under either of the two conflicts tests, Vermont law applies.

I. The Lex Loci Delecti Test

The traditional conflicts test, incorporated into the First Restatement, was that the law of the state where the wrong occurred governed the cause of action. The place of the wrong is in the state where the last event necessary to make an actor liable for an alleged tort takes place. Restatement of the Law of Conflict of Laws § 377 (1934). In such a case, the last link in the chain of liability is the place where the injury was sustained. Defendant contends that if the traditional test is applied, this court should look to the place of the injury to determine whether or not the plaintiff has a cause of action for the intentional torts of alienation of affection and criminal conversation. Defendant further contends that because the injury is loss of consortium, the locus of the injury is the domicile of the plaintiff and the marital domicile, that is New York.

The first of these two contentions is based on the traditional Restatement view which looks to the place of the injury in a multistate tort situation. In 1960, the Supreme Court of Vermont adopted the "place of the injury" conflicts test in the context of a negligent tort. Goldman v. Beaudry, 122 Vt. 299, 301, 170 A.2d 636 (1961). Without disturbing the law contained in Goldman, there is strong indication that considerations apart from the "place of injury" govern choice of law problems when certain types of intentional torts are involved. Although the Restatement may suggest otherwise, "American courts have always given, * * * preference to the law of the place of conduct over that of the place of harm, if the former (though not the latter) renders the defendant liable for an intentional tort." Ehrenzweig, The Place of Acting in Intentional Multistate Torts: Law and Reason Versus the Restatement, 36 Minn.L.Rev. 1, 5 (1951). (Emphasis added.) Ehrenzweig strenuously contends that there is a distinction for conflicts purposes between negligent torts which are primarily compensatory in character and properly subject to the place of the harm rule, and intentional torts, such as alienation of affections, which are primarily admonitory in character, closely related to the criminal sanction, requiring the application of the laws of the state in which the wrongful conduct has occurred. See Ehrenzweig supra and cases cited therein.

The case of Gordon v. Parker, 83 F. Supp. 40 (D.Mass.), aff'd on other grounds, 178 F.2d 888 (1st Cir. 1949) offers a good illustration of this distinction. In Gordon,

A domiciliary of Pennsylvania sued in the federal court in Massachusetts for the alienation of his wife's affections by acts committed in the state of the forum. Defendant moved for a summary judgment under a Pennsylvania statute barring actions of this type and alleged to be applicable as the law of the place where the defendant's act had its chief and indeed its final consequences.

36 U.Minn.L.Rev. 1, 3 (1951). Judge Wyzanski denied the defendant's motion, holding the law of Massachusetts applicable as the law of the state in which the defendant's conduct had concededly occurred.

He concluded that the major justification for the place of the harm rule is the protection of the compensatory element which buttresses a state's designation of negligence as "wrongful conduct". When this compensatory element is dominant as it is in the ordinary negligence action, the place of the harm rule is appropriate. However, when compensation is a secondary factor and the punitive element is dominant, a state finds conduct wrongful because its people regard it as sinful or offensive to public morals, and the conduct, not the injury, is critical for purposes of applying the applicable law. See Wawrzin v. Rosenberg, 12 F.Supp. 548, 549 (E.D.N.Y.1935). (A New York statute barring actions for alienation of affections did not prevent the bringing of such an action in a New York federal court if "* * * the wrongful acts of the defendant were committed within the state of New Jersey * * *.") Id. at 549.

Even if the "place of injury" is the touchstone for the tort of alienation of affections under the traditional rule, the law of Vermont would still be applied, because for the purposes of this tort Vermont is the "place of the injury". Section 377 of the first Restatement of the Law of Conflict of Laws posits the place of wrong in the state where the last event necessary to make an actor liable for an alleged tort takes place. The Restatement does not distinguish between negligent compensatory torts and intentional punitive torts in applying the place of harm rule, but it does conceptualize the place of the harm differently depending on the type of injury inflicted. The defendants in this case contend that without regard to where the wrongful acts occurred, the injury must be located in the state where the plaintiff and the matrimonial domicile were located when the alienation took place. If the injury to the consortium of the plaintiff was analagous to an injury against his person, the defendants contention would be sound. See Restatement of the Law of Conflict of Laws § 377 Note 1 (1935). If, however, injury to consortium is conceptually similar to an injury inflicted on things or chattels, then the place of harm is the place where the force takes effect on the thing injured. See Restatement of the Law of Conflict of Laws § 377 Note 3 (1934). When this latter concept applies, both wrongful conduct and harm can quite regularly be localized at the situs of the thing injured. A good illustration of this point is found in Section 415, comment (b) of the Restatement where, in dealing with conversion, identity between the place of the harm and the place of the wrongful conduct is assumed. Restatement, Conflict of Laws § 415, Comment (b) (1934). See also, Ehrenzweig, supra at 35.

Conceptualizing the locus of consortium, when it is injured is more difficult than positing the situs of personal injury, or injury to chattel. Consortium involves feelings and emotions which flow between two persons. Although it may be the husband's right to retain the consortium of his wife, it does not follow that the injury is inflicted at the situs of his person or the situs of the marriage when this consortium is damaged or cut off. On the contrary, it appears that the traditional conflicts test placed the situs of the injury with the wife or husband who was lured away. The 1928 Tentative Draft of the Restatement contained a specific provision governing the conflict of laws test applicable when rights incidental to relative status were injured. Relative status was defined as "* * * a relation in which one person has a legally recognized interest in another person." Restatement No. 4, Conflict of Laws § 406, Comment (a) (Tentative Draft, 1928). The rule stated that:

Section 406. Rights incidental to relative status are determined by the law of that state where the person in whom the right is asserted is at the time when the right is alleged to have been violated.

Restatement No. 4, Conflict of Laws § 406 (Tentative Draft 1928). Illustration (b) accompanying Tentative Section 406 gave an example solution to an alienation of affections conflicts problem:

(b) A, domiciled in state X, has a wife B. While B is visiting C, her mother, in state Y, C persuades B to leave A. Whether A has a cause of action against C depends on the law of Y.

Restatement No. 4, Conflict of Laws § 406, Comment (a), Illustration (b) (Tentative Draft 1928). Professor Beale notes in his commentaries on the Tentative Draft above that: "Rights incidental to relative status are created by the law of the state where the person is whose status is concerned." Restatement No. 4, Conflict of Laws, Beale's...