Miller v. Kretschmer, 45

• Decision Date: 05 January 1965
• Docket Number: No. 45,45
• Citation: 132 N.W.2d 141,374 Mich. 459
• Parties: Anna Marie MILLER and Margaret Jean Miller, Minors, by Helen Miller, their next friend, Plaintiffs and Appellants, v. Katherine KRETSCHMER, Defendant and Appellee.
• Court: Michigan Supreme Court

Page 141

132 N.W.2d 141

374 Mich. 459

Anna Marie MILLER and Margaret Jean Miller, Minors, by Helen Miller, their next friend, Plaintiffs and Appellants, v. Katherine KRETSCHMER, Defendant and Appellee.

No. 45.

Supreme Court of Michigan.

Jan. 5, 1965.

Starkey & Gentz, Mount Clemens, for plaintiffs and appellants.

Johnston & Wendt, by Robert L. Coburn, Mount Clemens, for defendant.

Before KAVANAGH, C. J., and DETHMERS, KELLY, BLACK, SOURIS, SMITH, O'HARA and ADAMS, JJ.

PER CURIAM.

The question purportedly presented in this case is:

'Should Michigan adopt the view that minor children have a common law right of action for damages against a person who wrongfully induces one of their parents to desert them and leave the family home?'

The trial judge, on motion to dismiss, held that there has been no statutory abolition of such a cause of action in this State. He based his conclusion upon the reasoning of United States District Judge Raymond W. Starr in the case of Russick v. Hicks, 85 F.Supp. 281. In that case Judge Starr held that such an action is not barred by P.A.1935, No. 127, as amended (C.L.1948, § 551.301 et seq. [Stat.Ann.1957 Rev. § 25.191 et seq.]), concluding that that statute was intended only to abolish the traditional alienation-of-affections action by a spouse for loss of consortium, conjugal society, and assistance of the other spouse.

The trial judge then decided that, while such an action had not been abolished by the cited statute, no such action did exist at the common law. He concluded that the creation of such a cause of action was a matter to be addressed to the State's policy-forming department--the legislature. Motion to dismiss was granted.

Section 1 of P.A.1935, No. 127 (C.L.1948, § 551.301 [Stat.Ann.1957 Rev. § 25.191]) reads as follows:

'All civil causes of action for alienation of affections, criminal conversation, and seduction of any person of the age of 18 years or more, and all causes of action for breach of contract to marry are hereby abolished.'

At the time the present action was brought, P.A.1961, No. 236 (C.L.S.1961, § 600.101 et seq. [Stat.Ann.1962 Rev. § 27A.101 et seq.]), commonly known as the revised judicature act of 1961, was in effect. Section 2901 (Chapter 29) of that act (C.L.S.1961, § 600.2901 [Stat.Ann.1962 Rev. § 27A.2901]) provides in part as follows:

'The following causes of action are abolished:

'(1) alienation of the affections of any person, animal, or thing capable of feeling affection, whatsoever;' (Emphasis supplied.)

Of particular pertinence is the comment of the Joint Committee on Michigan Procedural...