Taylor v. Keefe.

• Decision Date: 14 November 1947
• Citation: 56 A.2d 768,134 Conn. 156
• Parties: TAYLOR v. KEEFE.
• Court: Connecticut Supreme Court

134 Conn. 156

56 A.2d 768

TAYLOR

v.KEEFE.

Supreme Court of Errors of Connecticut.

Nov. 14, 1947.

Appeal from Superior Court, New Haven County; O'Sullivan, Judge.

Action by Donald Taylor against Stanley Keefe for alienation of the affections of plaintiff's mother. From a judgment rendered for defendant when plaintiff failed to plead further after a demurrer to the complaint was sustained, plaintiff appeals.

No error.

Anthony E. Grillo and Hubert C. O'Keefe, both of New Haven, for appellant.

John A. Mele and Lester H. Aaronson, both of New Haven, for appellee.

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS and DICKENSON, JJ.

BROWN, Judge.

This is an action on behalf of a minor son to recover of the defendant for the alienation of his mother's affections. The trial court sustained the defendant's demurrer to the complaint and, upon the plaintiff's failure to plead further, entered judgment for the defendant, from which the plaintiff has appealed. The following facts stand admitted upon the demurrer. For many years the plaintiff had been living happily with his mother. In 1943 the defendant by his arts, blandishments and seductions alienated her love and affection and destroyed the happiness of the plaintiff's home. In consequence, the plaintiff has suffered great distress of body and mind and has lost the love, affection and society of his mother. As a further result, he has lost much happiness, has been forced out of the home which he had with his mother, and has been denied her social and moral support, guidance and protection. It is also conceded that the plaintiff's father and mother are divorced and that custody of the plaintiff as a minor child was awarded to the mother.

The sole question for determination is whether a minor child can maintain an action for alienation of affections against one who has alienated from him the affections of his mother. The question has never been passed upon by this court, and no appellate court of last resort has recognized a cause of action in the plaintiff under such circumstances. There appear to be but three reported decisions in which the question has been ruled upon. In two of these, relief was granted where a father's affections had been alienated, and in the other it was denied where those of a mother were in question. The plaintiff contends that although this court has never recognized such a cause of action the time has now come when it should do so. The defendant takes the position that a child's right to his mother's affection is a natural right only, as distinguished from the legal right which a spouse has to the love and affection of his mate by virtue of the marriage contract, and that the practical difficulties of extending the protection of the law to the former are the reason why courts have not recognized and should not recognize a right in the plaintiff to the relief which he seeks.

In considering the nature of the mutual right of husband and wife each to enjoy the love and affection of the other, we have said: ‘The gist of an action for alienation of affections is the loss of consortium. ‘This is a property right growing out of the marriage relation and includes the exclusive right to the services of the spouse, and these contemplate not so much wages or reward earned as assistance and helpfulness in the relations of conjugal life according to their station and the exclusive right to the society, companionship, and conjugal affection of each other.’ Valentine v. Pollak, 95 Conn. 556, 561, 111 A. 869, 872.' Maggay v. Nikitko, 117 Conn. 206, 208, 167 A. 816, 817. The concrete inquiry is whether, under the present conception of the family relationship, a minor child's natural right to the love and affection of his mother should be accorded by the law the same protection as a husband's or wife's property right of consortium. The nature of the question is well set forth in the editorial comment in 162 American Law Reports 825, where it is pointed out that the underlying problem is, in its last analysis, a sociological rather than a legal one; that a child has an interest in his parents' affection and company which the courts under our system of law have the power to ‘legalize’ by recognizing a right of action for its protection; but that the vital query is whether it is wise for the courts to exercise their power of lawmaking in this particular instance.

Of the two decisions chiefly relied upon by the plaintiff, one is the case of Daily v. Parker, 152 F.2d 174, 162 A.L.R. 819, decided by the Circuit Court of Appeals, Seventh Circuit, in 1945. There, four minor children sued a married woman for enticing their father to leave them and their home and go to live with her and to refuse to contribute further for their maintenance and support. The court, 152 F.2d at page 177, held ‘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.’ The court, in the words of the American Law Reports note, supra, ‘based its conclusion on the change in the accepted view of the status of the wife and the children and their rights and obligations as members of the family, which, according to the court, lead from the old concept of the husband and father as the lord and master of his family to the recognition in modern times of mutual rights and obligations possessed by all the members of the family.’

In the other case, Johnson v. Luhman, 330 Ill.App. 598, 71 N.E.2d 810, five minor children sued a woman for alienating the affections of their father and depriving them of his support and society, including their rights to his paternal care and to the security of a family life. In upholding the right of action in the plaintiffs, the court cited with approval the reasoning and decision in the Daily case, decided a few months earlier. Referring to the change that has taken place in the conception of the family, it pointed out (330 Ill.App. at page 604, 71 N.E.2d at page 813) that under the early common law ‘The father spoke and acted for the family unit and the individual members thereof had no distinct identity. Hence, it was stated in 3 Blackstone's Commentaries 143 (1765), ‘The child hath no property in his father.’ It is common...