Russick v. Hicks

• Decision Date: 31 August 1949
• Docket Number: No. 1183.,1183.
• Citation: 85 F. Supp. 281
• Parties: RUSSICK et al. v. HICKS.
• Court: U.S. District Court — Western District of Michigan

85 F. Supp. 281

RUSSICK et al. v. HICKS.

No. 1183.

United States District Court W. D. Michigan, S. D.

August 31, 1949.

Urban A. Lavery, of Chicago, Illinois, and Jack W. Korn, of Cadillac, Michigan, for plaintiffs.

Alfred J. Fortino and Ralph L. Goggin, both of St. Louis, Michigan, and John M. Dunham, of Grand Rapids, Michigan, for defendant.

STARR, District Judge.

Plaintiffs Charles Theodore Russick and Robert Lee Russick, infants four and two years of age respectively, by Theodore L. Russick as next friend, bring this action against defendant Hicks to recover damages which they allege result from his having enticed and induced their mother to leave and desert them and their family home.

In their complaint and amendment thereof plaintiffs allege that they are the children of Theodore L. Russick and Mabel Bailey Russick, who were married in 1941; that from the time of their respective births to December 31, 1947, they lived with their mother and father in the family home in Michigan; that during all of that time their mother was a devoted mother and with the assistance and cooperation of their father provided them with all the usual comforts, resources, loving care, and attention to which children of their tender years are accustomed and entitled. They allege that defendant Hicks was a neighbor, friend, and associate of their parents and a frequent visitor in their home; that for some months prior to December 31, 1947, and culminating on that day, defendant Hicks enticed and induced their mother to leave and desert them and their family home, and to go to other places where defendant might associate and consort with her; and that as a result of his enticement and inducement, defendant Hicks has caused their mother to continuously remain away from them and their home. They further allege that because of defendant's wrongful acts and doings, their rights as infants to the maternal care, attention, support, and affection of their mother, and their right to have their home with their father and mother remain inviolate and undamaged, have been totally destroyed for all time in the future; and that they have entirely lost the maternal care, devotion, attention, and affection of their mother, which they would have been entitled to receive and would have received except for the wrongful acts and doings of the defendant. Plaintiffs further allege that on April 19, 1948, subsequent to the events set forth above, their mother and father were divorced by decree entered in the circuit court for Missaukee county, Michigan; that this decree awarded their custody and control to their father; that shortly thereafter their father removed his residence and domicile from the State of Michigan to the State of Ohio and at the same time, by virtue of his custody and control of plaintiffs, removed their residence and domicile to the State of Ohio; and that plaintiffs thereby became and are citizens of Ohio.

The defendant filed motion to dismiss the complaint for reasons which may be summarized as follows: (1) That the court is without jurisdiction because there is no diversity of citizenship; (2) that although the suit purports to be brought by the next friend of the infant plaintiffs, the complaint does not show or allege any judicial appointment of a next friend; and (3) that the complaint fails to state a claim upon which relief can be granted, because the alleged cause of action is not recognized in Michigan either at common law or by statute, and because Michigan's so-called "heart-balm statute," Act No. 127, Pub. Acts Mich.1935, Comp.Laws 1948, § 551.301 et seq., Stat.Ann. § 25.191 et seq., has abolished such civil actions.

At the conclusion of a hearing and the taking of testimony on the question of diversity of citizenship raised by defendant's motion, the court ruled that plaintiffs had satisfactorily established that when this suit was begun, they were domiciled in Ohio and were citizens of that State, that defendant was a citizen of Michigan, and that there was the requisite diversity of citizenship to give the court jurisdiction. This ruling disposed of the first ground of defendant's motion.

The second ground of the motion — that the complaint does not show or allege the judicial appointment of a next friend for plaintiffs—is without merit. The court holds that judicial appointment of a next friend for the infant plaintiffs in this action is not necessary. Rule 17(c) of the Federal Rules of Civil Procedure, 28 U.S. C.A., provides: "If an infant or incompetent person does not have a duly appointed representative he may sue by his next friend or by a guardian ad litem." In 6 Cyclopedia of Federal Procedure, § 2116, page 175, it is stated:

"A next friend is one who, without being regularly appointed guardian, represents an infant plaintiff. * * *

"It is not usual, unless a statute requires it, that a next friend should be appointed by the court, but the next friend of his own initiative commences the action and is under the supervision of the court."

See also 3 Moore's Federal Practice, 2d Ed., § 17.26, pages 1417-1422.

The third ground of defendant's motion to dismiss presents the more difficult question — whether or not the infant plaintiffs have a right of action for damages against defendant, who they allege enticed and induced their mother to leave and desert them and their family home. In considering this motion the court must assume the truth of all material and well-pleaded allegations of fact.

It is admitted that the right of action asserted by the plaintiffs in the present case has not been recognized at common law in Michigan. Indeed, it appears that such a right of action was not fully recognized by an American court until the decision in 1945 in Daily v. Parker, 7 Cir., 152 F.2d 174, 162 A.L.R. 819. That decision has been followed in Johnson v. Luhman, 330 Ill.App. 598, 71 N.E.2d 810, decided in 1947, and in Miller v. Monsen, Minn., 37 N.W. 2d 543, decided May 6, 1949. The able and well-reasoned opinions in these three cases definitely uphold the right of a minor child to maintain an action for damages against a person who has wrongfully enticed and induced a parent to desert the child and the family home.

As neither the legislature nor the Supreme Court of Michigan has spoken on the question here presented, it becomes the duty of this court to decide the question. When confronted with the same problem, Judge Evans in Daily v. Parker said, 152 F.2d at page 177: "Our conclusion * * * is that a child today has a right enforceable in a court of law, against one who has invaded and taken from said child the support and maintenance of its father, as well as damages for the destruction of other rights which arise out of the family relationship and which have been destroyed or defeated by a wrongdoing third party. Likewise, we are persuaded that because such rights have not heretofore been recognized, is not a conclusive reason for denying them. They will be denied if it appears that the state court has spoken and denied them. If said rights have not been denied in the state court, we see no reason why the Federal Courts should be more prone to deny them or to grant them than a state court. If the state courts have not acted, we are free to take the course which sound judgment demands. In the absence of a state court ruling our duty is tolerably clear. It is to decide, not avoid, the question."

The early common law of family relations was dominated by the Roman doctrine of pater familias, under which the father was lord and master of the home. Under this doctrine the father spoke for the family, and the rights of all its members were merged in him. However, through the centuries the concept of the family has slowly changed, and today it is recognized as a cooperative enterprise with mutual rights and obligations among all its members. Although the father may play the role of major breadwinner, both mother and children, within the limits of their abilities, often make contributions to the family income. Each is entitled to the financial aid and to the society and companionship of the others and to all the benefits that result from a united and cooperative family home life. The wife is no longer the chattel of her husband but his active partner. Likewise, the children have emerged from the role of subservient charges to that of responsible individuals. They are entitled to the tangible incidents of family life, such as food, clothing, and shelter, and also to the intangible, although equally important, elements of affection, companionship, moral support, and guidance from both the father and mother. The family relationship is today undoubtedly the most important relationship among civilized people; it is the relationship upon which all society must depend for endurance, permanence, and well-being. In Daily v. Parker the court said, 152 F.2d at page 177:

"On this subject of the family and the rights and obligations of its members there has been a change in the accepted view of the status of the wife and the children. The courts have been rather slow to follow this accepted change. But they have belatedly accepted it and when once they accepted the change they have made law by their decisions.

"In announcing this law, they have applied recognized principles to new or newly accepted views of the political and social conditions revolving about the family and the status of each member thereof."

Viewed with this concept of the present status of the family relationship, the question here presented is whether or not the infant plaintiffs have a right of action for damages against a person who wrongfully induced their mother to desert them and their home, thereby destroying the family relationship and their rights arising therefrom. This court is convinced that the answer must be in the affirmative. In Miller v. Monsen, supra, in holding that a minor has a right of action for damages against one...