McMillan v. Felsenthal

• Court: Texas Civil Court of Appeals
• Writing for the Court: MOORE
• Citation: McMillan v. Felsenthal, 482 S.W.2d 9 (Tex. Ct. App. 1972)
• Decision Date: 18 May 1972
• Docket Number: No. 616,616
• Parties: Billy Wayne McMILLAN, Appellant, v. Daniel I. FELSENTHAL, Appellee.

Page 9

482 S.W.2d 9

Billy Wayne McMILLAN, Appellant, v. Daniel I. FELSENTHAL, Appellee.

No. 616.

Court of Civil Appeals of Texas Tyler.

May 18, 1972.

Rehearing Denied June 15, 1972.

Badders & Keeling, C. A. Keeling, Nacogdoches, for appellant.

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

MOORE, Justice.

This is an appeal from a summary judgment. The action is in tort. As grounds for a cause of action, plaintiff alleged that for many months prior to February 26, 1971, defendant begin to visit a lounge owned by him and his wife, where his wife worked as a bartender; that the defendant intentionally set out to seduce and have sexual intercourse with his wife; and that he finally accomplished his purpose during the early morning hours of February 26, 1971, when he took plaintiff's wife to a lakehouse and kept her there until approximately 6:30 a.m. in the morning. Plaintiff further alleged that as a result of the defendant's intentional and wrongful acts, he was deprived of the services, affections, and consortium of his wife, Mary Ann McMillan; that a trespass was committed by the defendant upon the plaintiff's rights to the affection, love, consortium, and exclusive sexual relationship with his wife; that the defendant alienated the affections of the said Mary Ann McMillan; and that defendant's conduct was the controlling cause of the separation between him and his wife and his loss of consortium. His prayer was for actual as well as punitive damages. Defendant denied generally the allegations of the petition. Defendant also filed a motion for summary judgment pursuant to Rule 166--A, Texas Rules of Civil Procedure, alleging that the pleadings, depositions, and affidavits on file before the court showed that no material issue of disputed fact existed upon plaintiff's cause of action for 'alienation of affections' and therefore defendant was entitled to a summary judgment as a matter of law. Defendant specifically alleged in his motion that no disputed issue of fact existed upon plaintiff's cause of action for 'alienation of affections' because both plaintiff and his wife gave deposition testimony to the effect that the wife's affections had not been alienated. After a hearing the trial court granted a summary judgment in favor of the defendant denying plaintiff any of the relief under any of the allegations in his petition. Plaintiff duly perfected this appeal.

By six points of error plaintiff urges that the judgment must be reversed and remanded. In essence, he contends that the trial court erred in granting defendant a summary judgment because in so doing the trial court refused to recognize that a cause of action for criminal conversation exists under the laws of this State. He further urges that the trial court erred in failing to construe his pleadings as stating a cause of action for criminal conversation and in failing to hold that the evidence raised a disputed issue of material fact upon his alleged cause of action for criminal conversation. We sustain plaintiff's contention and accordingly reverse and remand the cause for trial on the merits .

The legal basis of all causes of action arising from situations of this sort springs from the interference with family relations. The interference with the family relationship may be of various types, including, but not restricted to, the interference known as alienation of affections. With respect to interference with a man's relationship with his wife, the three most common types of interference are (1) enticement or harboring the wife, (2) adultery with the wife, which in its tort aspect usually is called 'criminal conversation,' and (3) 'alienation of affections' which amounts to an interference only with the wife's mental attitude toward the husband because of malice or some other improper motive on the part of the defendant. Prosser on Torts, 3rd Ed., p. 894.

The author in the foregoing work on torts makes the following observations with regard to causes of action of this sort:

'Criminal conversation, enticement and alienation of affections still are often treated as separate torts, but there is no good reason for distinguishing them. They represent three forms of interference with aspects of the same relational interest, and of course all three may be present in the same case. When the action is for criminal conversation, proof of enticement or alienation will go to increase the damages, and the converse is likewise true. There is now a decided tendency to confuse the three, or to lump them together, usually under the general name of 'alienation of affections,' without any attempt to distinguish the possible elements of the tort.'

Since defendant's motion for summary judgment is leveled only at a cause of action for alienation of affections, it seems that defendant followed the usual tendency of lumping all possible types of interference under the general name of 'alienation of affections.'

The common law has long furnished an aggrieved husband with a right of action against his wife's adulterer for criminal conversation. Blackstone's Commentaries (Lewis's Ed.) Book 3, p. 139; Antonelli v. Xenakis, 363 Pa. 375, 69 A.2d 102. The right of an aggrieved husband to a cause of action for criminal conversation...