Smithhisler v. Dutter
| Decision Date | 07 May 1952 |
| Docket Number | No. 32716,32716 |
| Parties | , 47 O.O. 334 SMITHHISLER v. DUTTER. |
| Court | Ohio Supreme Court |
Syllabus by the Court.
1. In tort actions, the question of punitive damages may not ordinarily be submitted to a jury in the absence of actual malice.
2. In an action for alienation of affections of a spouse, where the alienator's only purpose was to acquire such affections for himself and his acts in accomplishing the alienation were wrongful, unlawful and intentional and the natural and probable result of the acts was the accomplishment of the alienation, malice may be implied as a justification for an award of punitive damages.
On September 19, 1949, appellee herein, John Smithhisler, hereinafter designated plaintiff, instituted an action against appellant herein, Earl Dutter, hereinafter designated defendant.
In his petition plaintiff allegs:
'* * * defendant began paying assiduous attention to plaintiff's said wife, with the malicious intent and purpose of winning her love and affection and alienating her affections for [from] plaintiff.
Plaintiff prays for judgment.
Issue was made by answer of defendant admitting certain parts of the petition, claiming that the loss of affection by plaintiff's wife for plaintiff was the result of gross neglect of duty on the part of plaintiff, and otherwise denying the allegations of the petition, and a reply.
The evidence in the present case is well summed up in the opinion of the Court of Appeals as follows:
'John Smithhisler and Erma Smithhisler were husband and wife; they lived together in such relationship, except for a few days in the fall of 1948, from the time of their marriage, until January 9, 1949; they had seven living children, ranging in age from 21 years to 8 years; the two older children were married, the others lived at home; the Smithhislers met Earl Dutter, and Mildred Dutter, his wife, when the Smithhislers rented a farm near the Dutter farm; the Dutters had two children--a a girl, who was married, and a boy, 27, who helped his father on the farm; the parties became close friends, meeting socially and for purposes of mutual helpfulness in the operation of their respective farms and for other purposes of a business and friendly nature; Mildred Dutter became ill in February, 1948, and Erma Smithhisler, with the approval of her husband, John Smithhisler, became the practical nurse and housekeeper in the Dutter home, remaining there many nights in such capacity; Mildred Dutter died in May, 1948; two nights after Mrs. Dutter died, Erma returned to her home at night, although she continued to act as a part-time housekeeper for Earl Dutter; on January 9, 1949, Erma Smithhisler left her home, her husband and children, and has earned her living by working various places as a cook and waitress; in the spring of 1949, Erma Smithhisler brought an action against her husband, John, for divorce; John contested this action, and filed a cross-petition against Erma for divorce vorce; by the judgment in this divorce action (filed July 9, 1949), Erma was refused any relief, and the cause of action on the cross-petition was continued.
'There is evidence that on one of the social affairs, when the Smithhislers and Dutters were together, Earl Dutter and Erma Smithhisler were discovered embracing each other; other evidence is to the effect that Earl Dutter would go to the Smithhisler home when he knew John was not at home.
The jury returned a verdict for plaintiff in the sum of $9,000, upon which judgment was entered, and amotion for a new trial was overruled.
The Court of Appeals affirmed the judgment of the Court of Common Pleas.
The cause is before this court upon the allowance of a motion to certify the record.
Critchfield, Critchfield, Critchfield, & Johnston, Wooster, and Britton S. Johnson, Kent, for appellant.
George H. Barnard, Wooster, for appellee.
A sigle question of law is presented to this court in this appeal. The question is stated by defendant as follows:
'Did the Court of Appeals err in holding that the Court of Common Pleas did not commit prejudicial error in his charge which stated that finding of implied malice is sufficient to justify an award of punitive damages in an action for alienation of affections?'
So far as the right to compensatory damages is concerned, there is no complaint made as to the charge of the court to the jury.
The court told the jury that, if the plaintiff possessed the love and affection of his wife, he was entitled to retain them and enjoy the companionship, love, society, and services of his wife without being molested in their enjoyment by interference on the part of any person; that before plaintiff could recover a verdict he must show that defendant was the cause of plaintiff's loss of the affection and love of his wife; that he must show a wrongful or wiful act or acts on the part of defendant which produced the results complained of; that, if plaintiff's wife voluntarily bestowed her love and affection upon defendant without any over act upon his part or conduct toward her which resulted in the alienation of her affections from her husband defendant would not be liable to plaintiff for damages; and that there can be no recovery for alienation of affections caused by the mistreatment of one spouse by the other, particularly if the entire affection between the spouses has been destroyed, unless such mistreatment is the result of influence exercised by the alienator.
However, with reference to punitive damages, the court charged the jury as follows:
'Punitive or exemplary damages are damages given by way of punishment of the defendant for a wrongful act, and are given when the act complained of which results in injury, was prompted by malice, and this includes a reasonable attorney fee for conducting the prosecution.
'Legal malice may be assumed in an action for alienation of affections when if appears that by reason of the acts of the defendant the affections of the spouse were alienated from the plaintiff.
'If you find for the plaintiff you are instructed that the measure of damages includes compensation for loss of love, society, affection, services, companionship and consortium of his wife, as well as compensation for any mental suffering and anguish he has endured, and any injury to his feelings, and distress of mind and body caused by the alienation of his wife's affections and loss of consortium.
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...that attorney fees are punitive damages, only one supports that proposition, and only by inference. See Smithhisler v. Dutter, 157 Ohio St. 454, 105 N.E.2d 868 (1952). Cf. Columbus Finance v. Howard, 42 Ohio St.2d 178, 327 N.E.2d 654 (1975); Peckham Iron Co. v. Harper, 41 Ohio St. 100 (1884......
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...of malice is required to award punitive damages. Pickle v. Swinehart, 170 Ohio St. 441, 166 N.E.2d 227 (1960); Smithhisler v. Dutter, 157 Ohio St. 454, 105 N.E.2d 868 (1952). Consequently, as the state trial court awarded the Plaintiff Fifty Thousand Dollars ($50,000.00) in punitive damages......
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