Nicholson v. Han

Decision Date25 June 1968
Docket NumberNo. 2,Docket No. 2399,2
Citation12 Mich.App. 35,33 A.L.R.3d 1386,162 N.W.2d 313
Parties, 33 A.L.R.3d 1386 Chris NICHOLSON, Jr., Plaintiff-Appellant, v. Maolin HAN, M.D., Defendant-Appellee
CourtCourt of Appeal of Michigan — District of US

Charles J. Porter, Bloomfield Hills, for appellant.

Feikens, Dice, Sweeney & Sullivan, Detroit, John Houston, Pontiac, for appellee.

Before LESINSKI, C.J., and McGREGOR and CANHAM, * JJ.

LESINSKI, Chief Judge.

The circuit court granted defendant's motion for accelerated judgment 1 and entered an order for summary judgment of dismissal 2 from which the plaintiff appeals. The court believed the substance of the plaintiff's claim to be in the nature of an action for 'alienation of affections, charging criminal conversation and seduction of a person over the age of 18 or more years' and therefore barred by statute. 3

Defendant's motion for summary judgment was 'governed by GCR 1963, 117, which permits such motion to be based, as it was here, on the ground that plaintiff's complaint failed to state a claim upon which relief can be granted. For the purpose of that motion, both at the trial and appellate levels, every well-pleaded allegation (of fact) in the complaint is assumed to be true.' Bielski v. Wolverine Insurance Company (1967), 379 Mich. 280, 283, 150 N.W.2d 788, 789. Accordingly, the following facts and allegations of fact which frame the legal issues are taken from the amended complaint and other papers filed in this cause.

Mr. Nicholson, the plaintiff herein, and his wife Marilyn, were experiencing marital difficulties. In December, 1960, plaintiff had occasion to consult the defendant, Dr. Maolin Han, a licensed physician, concerning an injury to plaintiff's left foot. During the course of treatment, plaintiff told the doctor about his marital problems and received an offer of help. The plaintiff avers that defendant offered to reconcile plaintiff's marital problems through the use of psychiatry and other means and warranted that his marital relations would improve. Defendant told plaintiff that he had been successful with other patients. The plaintiff and his wife consulted defendant in his role as a psychiatrist and marriage counselor in December, 1960, and in 1961 and 1962; however, the plaintiff's marital situation deteriorated to such a point that Marilyn Nicholson obtained a divorce in February, 1962. The plaintiff had occasion to visit Northville State Hospital in the fall of 1964 and saw there a hospital record relating to his wife. The record revealed that Marilyn Nicholson told her physicians that she had been intimate with defendant. Later Marilyn Nicholson told plaintiff that her personal relationship with the doctor began in 1961 and continued into 1964. The plaintiff claims no knowledge of the relationship between defendant and his wife until he saw the hospital record in the fall of 1964.

The plaintiff brought this action against defendant charging him with utilizing the doctor-patient relationship to seduce plaintiff's wife. The amended complaint contains five counts alleging: (1) breach of contract, (2) malpractice, (3) assault and battery, (4) trespass on the case (negligence) and (5) fraud. Each count contains an allegation to the effect that defendant used the pretext of rendering psychiatric and marriage counseling services to deprive plaintiff of the services, companionship, and marital relationship of his wife by inducing her to engage in a sexual relationship and to divorce plaintiff. The plaintiff stated in opposition to the motions for accelerated and summary judgment that 'there can be no doubt that plaintiff's amended complaint includes elements which used to be recoverable through actions for criminal conversation or alienation of affections. However, that fact does not immunize defendant from suit.'

The lower court found plaintiff's entire claim to be based upon torts abolished by statute and dismissed the action. The plaintiff appeals the court's ruling as respects counts 1 and 5 of the amended complaint for breach of contract and fraud.

The question before us is whether counts 1 and 5 of the amended complaint plead causes of actions unaffected by the statutory bar. 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.'

The provisions of C.L.1948, § 551.301, supra, were substantially re-enacted as C.L.S.1961, § 600.2901 (Stat.Ann.1962 Rev. § 27A.2901), in the following language:

'The following causes of action are abolished:

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

'(2) criminal conversation;

'(3) seduction of any person of the age of 18 years or more;

'(4) breach of contract to marry.'

In Miller v. Kretschmer (1965), 374 Mich. 459, 461, 132 N.W.2d 141, the Supreme Court concluded that 'the reenactment of the above section (C.L.1948, § 551.301), as modified by the legislature, has unquestionably spelled out a legislative decision to abolish all actions for alienation of affections.' Miller v. Kretschmer, supra, teaches that the ambit of the re-enacted statute extends beyond the orthodox action for alienation of a spouse for loss of consortium, conjugal society, and assistance of the other spouse.

We have momentarily digressed from our main inquiry concerning the nature of the appealed counts to make plain the fact that Michigan courts have taken the statute to mean exactly what it says. Further, it has been held that a bare reading of the statute is sufficient and no interpretation is necessary when the language employed by the legislature is plain, certain, and unambiguous. Van Antwerp v. State (1952), 334 Mich. 593, 55 N.W.2d 108. And 'a plain and unambiguous statute is to be applied, and not interpreted, since such a statute speaks for itself, and any attempt to make it clearer is a vain labor and tends only to obscurity.' City of Lansing v. Township of Lansing (1959), 356 Mich. 641, 649, 97 N.W.2d 804, 809.

A reading of the statute here in question reveals no ambiguity or delphic meaning in the clear language employed by the legislature.

Count 1 alleges that defendant failed to perform a special agreement to reconcile and improve plaintiff's marital problems through the use of psychiatry and other means, 'in that he failed to constructively counsel plaintiff and his wife and in that defendant failed to use psychiatry and in that he in fact induced plaintiff's wife to become friendly and intimate and to have sexual intercourse with defendant and induced plaintiff's wife to obtain a divorce from plaintiff.' 4

The plaintiff cites Stewart v. Rudner (1957), 349 Mich. 459, 84 N.W.2d 816, and Johnson v. Caldwell (1963), 371 Mich. 368, 123 N.W.2d 785, in support of his proposition that defendant doctor made a special agreement enforceable under Michigan law. In the Stewart case, the Court found that the language of the parties gave rise to an express promise on the part of the defendant physician to perform a Caesarean section and that he breached the special agreement by failing to perform the operation at the mother's full term. In the Johnson case, the language of the parties again indicated that the physician had made a special agreement to treat the plaintiff during and after pregnancy. The failure to provide proper Post partum treatment was held a breach of contract.

The Court said in Stewart v. Rudner, supra, 349 Mich. 459, pp. 467, 468, 84 N.W.2d pp. 822, 823:

'We have now to consider the contract made. A doctor and his patient, of course, have the same general liberty to contract with respect to their relationship as other parties entering into consensual relationship with one another, and a breach thereof will give rise to a cause of action. It is proper to note, with respect to the contracts of physicians, that certain qualitative differences should be observed, since the doctor's therapeutic reassurance that his patient will be all right, not to worry, must not be converted into a binding promise by the disappointed or quarrelsome. These qualifications we have in mind as we proceed.'

This Court considers the above language especially salutary in this case where the plaintiff alleges a special agreement to effect a psychiatric cure related to the marital relationship. The warranties and representations alleged by plaintiff to show a special agreement to reconcile a marriage are, in another sense, Qualitatively different from the special agreements found in the Stewart and Johnson cases. This is not to say that a patient and his doctor cannot make an express contract for psychiatric services containing a warranty of 'cure,' but such must very clearly appear from what was said by the parties at the time of making. The Court held in McInerney v. Detroit Trust Co. (1937), 279 Mich. 42, 46, 271...

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    ...principles, citing Clark, in Nash v. Sears Roebuck & Co., 383 Mich. 136, 143, 174 N.W.2d 818 (1970). See also Nicholson v. Han, 12 Mich.App. 35, 43, 162 N.W.2d 313 (1968), and Talucci v. Archambault, 20 Mich.App. 153, 161, 173 N.W.2d 740 (1969). With respect to the particular type of tort a......
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    ...We did not state that the property claim fell within the statutory ban. Here, the court of appeals relied upon Nicholson v. Han, 12 Mich.App. 35, 162 N.W.2d 313 (1968), a case in which a husband sued the family doctor who had been functioning as a marriage counselor and who had warranted an......
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