Stone v. Hinds

• Decision Date: 03 June 1976
• Citation: 541 S.W.2d 598
• Parties: Mildred STONE, Appellant, v. Anna HINDS, Appellee.
• Court: Tennessee Court of Appeals

Page 598

541 S.W.2d 598

Mildred STONE, Appellant, v. Anna HINDS, Appellee.

Court of Appeals of Tennessee, Western Section.

June 3, 1976 Certiorari Denied by Supreme Court Sept. 7, 1976.

Robert J. Shockey, Chattanooga, for appellant.

Robert W. Ritchie, Knoxville, for appellee.

NEARN, Judge.

This is an alienation of affection suit which was disposed of below by the granting of a motion for summary judgment made by the defendant. In granting the motion the Trial Judge found that the statute of limitations, T.C.A. § 28--305, barred plaintiff's claim.

Summary judgment procedure is not a substitute for a trial. It is only when there is no disputed issue of material fact that a summary judgment should be granted. If such fact issue is present, the matter must not be resolved by a battle of affidavits, but must be resolved by a trial on the merits. Evco Corp. v. Ross (1975 Tenn.) 528 S.W.2d 20; Layhew v. Dixon (1975 Tenn.) 527 S.W.2d 739.

With this rule in mind we have examined the record before us and find that the complaint alleges that in December 1971, it 'became apparent to plaintiff that defendant had commenced a course of action whereby she alienated the affection of plaintiff's husband.'

By motion for summary judgment, defendant charged that plaintiff's claim was barred by the statute of limitations and attached supporting affidavits and depositions.

The pleadings, affidavits, counter-affidavits and depositions admit or concur in the following:

(1) On May 20, 1970, the plaintiff's husband left home following an argument with plaintiff.

(2) In July 1970, plaintiff learned of a close relationship between her husband and the defendant.

(3) On August 21, 1970, plaintiff's husband returned home.

(4) On September 28, 1972, plaintiff's husband again leaves home.

(5) On February 12, 1973, plaintiff's husband files suit for divorce.

(6) On September 19, 1974, this suit for alienation of affection is filed by plaintiff.

T.C.A. § 28--305 provides that a suit for alienation of affection is barred unless it is 'commenced within three (3) years from the accruing of the cause of action.' The phrase 'from the accruing of the cause of action' means from the time when the plaintiff knew or reasonably should have known that a cause of action existed. Broidioi v. Hall (1949) 188 Tenn. 236, 218 S.W.2d 737; Teeters v. Currey (1974 Tenn.) 518 S.W.2d 512; McCroskey v. Bryant Air Conditioning Company (1975 Tenn.) 524 S.W.2d 487.

Counsel for plaintiff does not contend that the suit is based on any alienation of affection that occurred prior to August 21, 1970, but is based on that alienation that occurred subsequent to the alleged reconciliation of the parties on August 21, 1970. In our opinion this is the only tenable position that plaintiff may take, for as we view the record, plaintiff has admitted that she was aware of an alienation of affection by the defendant prior to the alleged reconciliation.

The threshold issue then is whether a second, new and separate alienation of affection by the same person as the first is barred by the statute of limitations when such second alienation reaches maturity more than three years after the first. We hold it is not. If, in fact, there has been a reconciliation of the husband and wife after the first known alienation, and subsequent thereto, an alienation of the new affectionate relationship takes place, a new cause of action may accrue for the new wrongful act, and the time for commencing an action begins from the accrual of the new cause of action.

Counsel for defendant strongly relies upon the case of Rheudasil v. Clower (1954) 197 Tenn. 27, 270 S.W.2d 345, for the proposition that plaintiff's cause of action was barred in July of 1973, which was three years after plaintiff alleges she first learned of the alienation. We believe this reliance is misplaced. The Rheudasil case arrived in the Supreme Court from an order sustaining a demurrer. Only the pleadings were before the Court. In paraphrasing the declaration, the Court observed that the plaintiff husband left his wife on March 5, 1951, returned on November 23, 1951, with final separation occurring on November 25, 1951. Then, the Court in describing the separation of March 5, 1951, quoted directly from the declaration as follows:

"It was very obvious to the plaintiff that he was losing the love, affection, and consortium of his wife because of the evil designs, diabolical ways,...