Moulin v. Monteleone

• Decision Date: 28 November 1927
• Docket Number: 28466
• Citation: 115 So. 447,165 La. 169
• Court: Louisiana Supreme Court
• Parties: MOULIN v. MONTELEONE

115 So. 447

165 La. 169

MOULIN v. MONTELEONE

No. 28466

Supreme Court of Louisiana

November 28, 1927

Rehearing Denied January 18, 1928

Appeal from Civil District Court, Parish of Orleans; Hugh C. Cage Judge.

Action by Augustin R. Moulin against Frank J. Monteleone. From the judgment dismissing the suit on an exception of no cause or right of action, plaintiff appeals.

Affirmed.

Brittingham & Tycer, of New Orleans, for appellant.

McCaleb & McCaleb, of New Orleans, for appellee.

O'NIELL C. J. LAND and BRUNOT, JJ., dissent.

OPINION

O'NIELL, C. J.

This is a suit for damages for alienation of a wife's affections. It is said to be the first instance where such a cause or right of action has everbeen asserted in Louisiana. The suit was dismissed on an exception of no cause or right of action, and the plaintiff has appealed from the decision.

There is no positive law to be found on the subject, in the Civil Code, or in any statute or in the jurisprudence of this state. There is no suggestion or intimation of such a right of action to be found anywhere in the provisions of the Civil Code on the subject of marriage, or of the relative rights and obligations of husband and wife, or the dissolution of the contract of marriage, or the causes or the consequences thereof, or on the subject of damages, arising either ex delicto or ex contractu. Articles 119 and 120 of the Code declare that the husband and wife owe to each other fidelity, support and assistance; that the wife must live with her husband and follow him wherever he chooses to reside; and that he, in turn, must provide for her wants according to his means. It seems strange that the law, in saying what the husband and wife owe to each other, does not mention love and affection; perhaps it is because the law undertakes only to control and regulate human conduct -- not human nature. As Ralph Waldo Emerson observed, laws do not make men; men make laws.

There are several very obvious reasons why none of the great lawyers who have graced Louisiana's bar has ever heretofore thought that an action for damages for alienation of a wife's affections would be consonant with the system of law peculiar to Louisiana. In the first place, the damages which are allowed in those jurisdictions where the offense constitutes a cause of action for damages are declared to be -- and they are essentially -- punitive or exemplary damages. And, as this court has said many times, "Our law does not authorize the infliction of punitive damages in civil cases." Serio v. American Brewing Co., 141 La. 290, 74 So. 998, L. R. A. 1917E, 516; Vincent v. Morgan's La. & T. R. R. & S. S. Co., 140 La. 1027, 74 So. 541; Burt v. Shreveport Railway Co., 142 La. 308, 76 So. 723; Lee Lumber Co. v. Union Naval Stores Co., 142 La. 502, 77 So. 131; Dunson v. Baker, 144 La. 167, 80 So. 238; Howell v. Vicksburg, S. & P. Ry. Co., 144 La. 427, 80 So. 613; Hanna v. Otis, 151 La. 851, 92 So. 360; Selser v. Revol, 152 La. 447, 454, 93 So. 675; Janssen Catering Co. v. Abadie, 157 La. 357, 102 So. 428; Mundy v. Phillips, 157 La. 445, 102 So. 519; Spearman v. Toye Bros. Taxicab Co. (No. 28141, 164 La. 677, 114 So. 591.

The idea of allowing punitive damages, in a civil action for tort, is perhaps a relic of the obsolete remedy called "appeal," which Blackstone, vol. 4, p. 383, says "was an accusation by a private subject against another for some heinous crime, demanding punishment on account of the particular injury suffered, rather than for the offense against the public." "It had its origin," says the author, "in those times when a private pecuniary satisfaction called a weregild was constantly paid to the party injured, or his relations, to expiate enormous offenses." Weregild meant the money value of a human being. The remedy called "appeal," in the early periods of the common law, was discouraged and virtually abolished by a statute of Westminster II, 13 Edward I, c. 12, requiring that, if the appellee should be acquitted, the appellant should suffer a year's imprisonment and pay a fine to the king, besides damages to the appellee, etc. 4 Blackstone, 316. In Louisiana, if a public wrong causes personal or private injury to an individual, the one wrong is not confused with or swallowed up in the other, but the public wrong is dealt with alone in the courts exercising criminal jurisdiction, and the private wrong in the courts exercising civil jurisdiction.

The case of Massy v. The Marquis of Headfort, in County Clare, Ireland, in 1804, for damages for alienation of a wife's affections, is one of the most memorable in Anglo-Saxon annuls. It was made so, not so much by the prominence of the parties, as by the greatness of Curran's speech to the jury, and by the tragic background for it, in that Curran had only recently lost his own wife in the same terrible way. Although he represented the plaintiff in the case, and spoke for damages, and personified his client's cause in his own life, he gave utterance, perhaps unconsciously, but in a way almost gigantic, to the fundamental proposition that compensation in money is not the right remedy for loss of a wife's affections. Turning from the jury to the presiding judge, Curran said:

"Oh, what woe would have been saved if you, my Lord, had met the adulterer when he arrived at the bank of the river with the ill-fated fugitive, and had spoken to him thus: 'Pause, my Lord, while there is yet a moment for reflection. What are your motives, what your views, what your prospects, from what you are about to do? You cannot look to the chance of marrying this wretched fugitive. Between you and such an event there are two sepulchers to pass. [The Marquis of Headfort had a wife, and Mrs. Massy, of course, a husband.] What are your inducements? It is love, think you? No. Do not give that name to any attraction you can find in the faded refuse of a violated bed. Love is a noble and generous passion; it can be founded only on a pure and ardent friendship, on an exalted respect, on an implicit confidence in its object. Could you repose upon her faith? Look in her face, my Lord; she is at this moment giving you the violation of the most sacred of human obligations as the pledge of her fidelity. She is giving you the most irrefragable proof that as she is deserting her husband for you, so would she without scruple abandon you for another.'"

The damages sought by the Reverend Charles Massy from The Marquis of Headfort were not compensatory, but punitive or exemplary, damages. That was acknowledged in the speeches by all of the great array of counsel who appeared, and was repeated in Baron Smith's charge to the jury, when he said:

"The principle is that this sort of action partakes of the nature of a penal prosecution, and that large and exemplary damages are usually awarded."

Another reason why, in Louisiana, a suit of this kind is untenable is that, as to the rights of the parties:

"The law considers marriage in no other view than as a civil contract." Rev. Civ. Code, art. 86.

And it is well settled, in Louisiana, that there is no right of action for damages ex delicto against one who induces another to violate his or her contract with a third person. See Kline v. Eubanks, 109 La. 241, 33 So. 211, and B. J. Wolf & Sons v. New Orleans Tailor-Made Pants Co., 113 La. 388, 37 So. 2, 67 L.R.A. 65, quoting Cooley on Torts (2d Ed.) p. 581, viz.:

"An action cannot, in general, be maintained for inducing a third person to break his contract with the plaintiff; the consequence, after all, being a broken contract, for which the party to the contract may have his remedy by suing on it. But if the third person was induced to break his contract by deception, it may be different. If, for example, one were to personate a vendee of goods, and receiveand pay for them as on a sale to himself, the vendee would have his action against the vendor, but he might also pursue the party who, by deceiving one, had defrauded both."

There is no element of such deception or fraud when a man persuades the wife of another to breach her contract by violating her marriage vow. It is culpable, of course, beyond measure, and ought to be subject to severe penalty; but that has nothing to do with the personal right of action of the party injured by the breach of contract. It is true that marriage is something more than an ordinary contract in which the parties alone are concerned, for it is a status, in which society itself is concerned. But the laws which govern marriage as a status, in the interest of society, are those which protect society generally, such as penal laws, as distinguished from those which protect and regulate the private rights of the parties to the contract. One who induces another to break that contract ought to be subject to prosecution at the instance and for the benefit of society, but the prosecution and punishment cannot be by means of a civil suit, for the benefit only of the other party to the contract.

In each of the two cases last cited, the action was for damages against a person who had persuaded another to breach his contract of employment with the plaintiff, and the damages claimed were the loss of the services to be rendered. The decisions are therefore very apropos. In the latter of the two cases (113 La. 394 and 396, 37 So. 5) the court said:

"In Kline v. Eubanks, 109 La. 241, 33 So. 211, we held that the civil action provided by that statute [Act 50 of 1892, p. 71] would not lie until after a criminal conviction. We also considered the case under Civ. Code, art. 2315, which provides that 'every act of man that causes damage to another obliges him by whose fault it happened to repair it'; and we held that no action was maintainable under said article where a third...