Norton v. Macfarlane

• Decision Date: 12 September 1991
• Docket Number: No. 880248,880248
• Citation: 818 P.2d 8
• Parties: Greg NORTON, Plaintiff and Appellee, v. J. Ralph MACFARLANE, M.D., Defendant and Appellant.
• Court: Utah Supreme Court

Page 8

818 P.2d 8

60 USLW 2299

Greg NORTON, Plaintiff and Appellee, v. J. Ralph MACFARLANE, M.D., Defendant and Appellant.

No. 880248.

Supreme Court of Utah.

Sept. 12, 1991.

Donald B. Holbrook, David R. Money, David N. Sonnenreich, Salt Lake City, for Ralph Macfarlane.

Jean R. Babilis, Ogden, Jody L. Howe, Salt Lake City, for Greg Norton.

STEWART, Justice:

This is an interlocutory appeal from the trial court's order denying defendant's motion to dismiss plaintiff's tort actions for alienation of affections and criminal conversation. On this appeal, we are again urged to abolish the tort of alienation of affections as well as the tort of criminal conversation.

Plaintiff Norton's complaint alleges that he and his wife, Sherry Norton, had three children during their marriage and that they lived happily and contentedly together until the summer of 1985. The complaint alleges that at that time defendant Macfarlane, a physician, developed an improper and undue influence over Sherry Norton and that he induced her by means of that influence to abandon and leave her husband, home, and children. The complaint further alleges that Macfarlane knew that Sherry Norton was plaintiff's wife and that he nonetheless committed adulterous acts with her. Defendant filed a motion under Rule 12(b)(6) of the Utah Rules of Civil Procedure to dismiss both of plaintiff's claims for failure to state a claim upon which relief can be granted. The trial court denied the motion, and we granted a petition for interlocutory appeal.

I. THE TORT OF ALIENATION OF AFFECTIONS

We again revisit the issue of whether marital consortium interests should be protected by the tort of alienation of affections. We affirmed the continued viability of that action in Nelson v. Jacobsen, 669 P.2d 1207 (Utah 1983). Defendant's argument in this case is that abolition of the tort is required by our subsequent decision in Hackford v. Utah Power & Light Co., 740 P.2d 1281 (Utah 1987), and by the Legislature's adoption in 1987 of irreconcilable differences as a ground for divorce. See Utah Code Ann. § 30-3-1(3)(h) (1989). Defendant also asserts that the tort should be abolished for a number of other reasons and that Utah should join what he asserts is the "mainstream of American legal opinion" by abolishing the tort of alienation of affections.

In Nelson, a divided court sustained the viability of the tort of alienation of affections and rejected almost all the arguments defendant asserts here for abolishing that tort. We need not traverse again the same ground that was covered in Nelson. Defendant does, however, raise a few new arguments in contending that the tort of alienation of affections should be abolished. We address only those issues and rely on Nelson as an adequate answer to defendant's remaining arguments.

First, defendant argues that the Court should reassess the holding in Nelson in light of our intervening opinion in Hackford v. Utah Power & Light Co., 740 P.2d 1281 (Utah 1987), which, again by a divided court, held that a spouse has no independent action against a tort-feasor for loss of consortium arising from a physical injury caused to the other spouse by the tort-feasor. ¹ Defendant insists that because Hackford denied protection to the consortium interests of a spouse while Nelson protected the consortium interests of a spouse, those cases are inconsistent and cannot logically coexist. Defendant fails, however, to recognize significant differences between those two cases.

Hackford did not address the issue whether the intentional tort of alienation of affections should be abolished. The issue in Hackford was whether one spouse had an independent cause of action for damages for loss of the other spouse's consortium because of a physical injury negligently inflicted on the other spouse by a third party. The Court held that the Married Woman's Act of 1898, which states in part that "[t]here shall be no right of recovery by the husband on account of personal injury or wrong to his wife," Utah Code Ann. § 30-2-4 (1989), barred a nonphysically injured spouse from suing on an independent cause of action for loss of consortium as a result of physical injury to the other spouse. See Hackford, 740 P.2d at 1288. Justice Zimmerman wrote the lead opinion in Hackford. Justice Howe wrote an opinion concurring in the result, which was joined by Chief Justice Hall. Justice Durham wrote a dissenting opinion, concurred in by the author of this opinion. A common rationale relied on by both Justices Zimmerman and Howe was that the Married Woman's Act and the doctrine of stare decisis precluded recognition of a cause of action for loss of consortium caused by the negligent conduct of a third party. Justice Howe also explicitly stated that the cause of action asserted in Hackford was derived from the primary, personal injury caused the other spouse, and therefore was distinguishable from a direct cause of action for loss of consortium by a tort-feasor's alienation of the affections of one spouse for the other. 740 P.2d at 1287. Hackford does not, therefore, stand for the proposition that consortium is an interest undeserving of judicial protection. ² Justice Durham's dissent argued that consortium was indeed a valid, protectible interest, and that injury to consortium interests gave a nonphysically injured spouse an independent cause of action for that loss. She contended that neither the Married Woman's Act nor the doctrine of stare decisis precluded such an action. ³

Defendant's argument that Hackford and Nelson are in irreconcilable conflict is correct only insofar as the result is concerned. They are not inconsistent in principle, however, because both support the proposition that the interests included in the term consortium are legitimate interests deserving of legal protection. Because the Court's refusal in Hackford to recognize a nonphysically injured spouse's cause of action for a loss of consortium arising from a physical injury to the other spouse was based on statutory construction and stare decisis, that case did not undermine this Court's ruling in Nelson. Nor does Hackford have any force in persuading us that the common-law cause of action at issue here should be abolished.

Furthermore, even if we were to reverse Nelson and abolish the tort of alienation of affections to achieve consistency of result with Hackford, we still would not bring consistency of result to Utah law in the sense that defendant thinks appropriate. The Utah Constitution provides civil damages for injuries to the consortium interests of familial love, companionship, services, and society that arise in wrongful death actions. Article XVI, section 5 of the Utah Constitution provides a cause of action for wrongful death and states that "the amount recoverable shall not be subject to any statutory limitation...." Several Utah cases hold that injury inflicted on family relationships is a recoverable damage item in a wrongful death case under this provision. In Evans v. Oregon Short Line Railroad, 37 Utah 431, 108 P. 638 (1910), an action for the wrongful death of a spouse, this Court defined the consortium-type damages that are recoverable in such an action:

Whatever is allowed by the jury must therefore be by way of pecuniary recompense for the loss sustained by the wife and minor children, and must be strictly limited (1) to what the evidence shows the deceased contributed, and thus would probably have continued to contribute to them in money or other means by way of support and as an accumulation to his estate; and (2) to the money value of the injury suffered by the wife and minor children by reason of the loss of the advice, comfort, and society which they enjoyed prior to the death of the deceased and which would have been continued for their benefit.

37 Utah at 440, 108 P. at 641. In Jones v. Carvell, 641 P.2d 105 (Utah 1982), we explained further the nature of the losses recoverable in wrongful death actions by family members:

It is the loss of society, love, companionship, protection and affection which usually constitute the heart of the [wrongful death] action. Stated somewhat differently, this Court has stated that recovery may be had for "the loss of affection, counsel and advice, the loss of deceased's care and solicitude for the welfare of his or her family and the loss of the comfort and pleasure the family of deceased would have received ..." In re Behm's Estate, 117 Utah 151, 159, 213 P.2d 657, 661, 40 A.L.R.2d 490, 496 (1950).

641 P.2d at 108 (citations omitted).

Neither defendant nor the dissenters in this case and in the companion case of Sharp v. Roskelley, 818 P.2d 4 (Utah 1991), contend that the Married Woman's Act can be construed to abolish the tort of alienation of affections. Furthermore, if stare decisis were given controlling application in this case, as it was in Hackford, the tort of alienation of affections would have to be sustained, since that tort has long been recognized as a valid cause of action in Utah. Nelson v. Jacobsen, 669 P.2d 1207 (Utah 1983); Sadleir v. Knapton, 5 Utah 2d 26, 296 P.2d 278 (1956); Wilson v. Oldroyd, 1 Utah 2d 362, 267 P.2d 759 (1954); Buckley v. Francis, 78 Utah 606, 6 P.2d 188 (1931).

The argument that the tort of alienation of affections is an historical anomaly is incorrect. Certainly, many of the common-law concepts concerning the nature of the marriage relationship and the jural rights of spouses with respect to each other and to family property are no longer accepted by any court. Few today would challenge the proposition that a sound marriage relationship is intrinsically deserving of protection from outside assaults made by those who use improper means to interfere with it. The obsolete procedural and property theories that once attended the tort, and are relied on by the dissenters as reasons for abolishing the tort, have long been abandoned; if applied today, they would be unconstitutional.

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