Trainor v. Deters

• Decision Date: 07 July 1969
• Parties: , 51 O.O.2d 258 TRAINOR, Appellee, v. DETERS, Appellant.
• Court: Ohio Court of Appeals

Page 135

22 Ohio App.2d 135

259 N.E.2d 131, 51 O.O.2d 258

TRAINOR, Appellee, v. DETERS, Appellant.

Court of Appeals of Ohio, First District, Hamilton County.

July 7, 1969.

Syllabus by the Court

1. Alienation of affections is the commission of a willful and malicious injury. And, in an action seeking recovery therefor, it is necessary that plaintiff prove that defendant was the aggressor, or, at the very least, aided or abetted the transfer or diversion of the affections of the errant spouse; that is, that defendant wrongfully, maliciously and intentionally enticed, induced, persuaded and caused plaintiff's spouse to lose affection for plaintiff and that defendant intended to bring about the alienation.

2. The alienation of the affections of a spouse is not a necessary element of the cause of action for criminal conversation.

3. Before punitive or exemplary damages may be awarded in an action for alienation of affections, actual damages must be found and assessed.

4. A plaintiff's cause of action for criminal conversation is complete upon proof of sexual intercourse between defendant and plaintiff's spouse.

5. In such case, it is not necessary to show pecuniary damages-the violation of the marriage rights is sufficient to justify an allowance of, at least, nominal damages.

6. A charge to the jury in an alienation-of-affections action, that 'the claims by the plaintiff of alienation of affection and criminal conversation may be considered as one claim with the criminal conversation claim being an aggravation of alienation of affections claim. * * * You consider both of these matters as one,' is error prejudicial to defendant.

Weber, Hensley & Nurre, Cincinnati, for appellee.

Richard D. Haney, Cincinnati, for appellant.

SHANNON, Presiding Judge.

This is an appeal on questions of law from the overruling of a motion for a new trial in a suit in the Court of Common Pleas for damages for alienation of affections.

Plaintiff, appellee herein, was married to Earl Thomas Trainor on January 31, 1953, and four children were born as issue of that union. During the summer of 1961, Earl Thomas Trainor met defendant, appellant herein, when she came to work for his employer. Defendant was then nineteen, and Trainor and his wife were both thirty-three years of age. By December 1961, Trainor was, in his own words, 'making passes' at defendant. In August 1964, Trainor left his wife, and she, in January 1965, filed the petition in the case at bar alleging that:

'* * * in the summer of the year 1962, the defendant commenced to associate with and to commit adultery with plaintiff's said husband, with the wilful, deliberate and malicious intention of alienating his affections from plaintiff * * * and by reason thereof she has completely and permanently alienated his affections * * *.'

Upon trial, a jury returned a verdict in favor of plaintiff.

Appellant, defendant below, asserts two assignments of error: The first raises the question of weight of the evidence, and the second the propriety of the court's charge to the jury upon the issue of criminal conversation.

In order to establish a prima facie case for alienation of affections the plaintiff is required to prove that the defendant wrongfully, maliciously and intentionally enticed, induced, persuaded and caused plaintiff's husband to lose his affections for her, and that defendant intended to bring about the alienation. Lewis v. Bauer, 198 N.E.2d 781, 93 Ohio Law Abst. 457.

The gist of the action for alienation of affections is the commission of a wilful and malicious personal injury. McGrath, v. McGrath, 48 Ohio App. 434, 194 N.E. 43.

It is essential to establish the cause of action for alienation of affections that an intentional and a malicious alienation be proved, the malice to sustain compensatory damages being malice in law and not actual malice. White v. Buchwalter, 75 N.E.2d 604, 49 Ohio Law Abst. 589, at page 591.

Legal malice is that state of mind under which a person acts with disregard and a lack of consideration for the just rights of others. 35 Ohio Jurisprudence 2d 142, Malicious Prosecution, Section 22.

Therefore, with respect to the action of a wife for alienation of the affections of her husband, mere proof that he was upon terms of intimate friendship with the defendant, without any overt act, conduct or treatment on the defendant's part influencing the actions of the husband, will not entitle the plaintiff to recover. See 28 Ohio Jurisprudence 2d 270, Husband and Wife, Section 145, and cases cited thereunder. However, if the defendant's acts and conduct, taken in conjunction with the acts and conduct of the husband, contributed to alienate the affections of the husband, the aggrieved wife may recover. Booth v. Krouse, 78 Ohio App. 461, 65 N.E.2d 89.

It is apparent, then, that the defendant in a suit for alienation of affections must have been the aggressor or, at the very least, have aided or abetted the transfer or diversion of the affections of the errant spouse.

It must also be recognized that if it appears that there was no affection to alienate, recovery is precluded. Booth v. Krouse, supra.

Perusal of the record before us compels the conclusion that plaintiff's husband was the instigator of the affair which ultimately developed between him and defendant. However, we perceive that once the flame had been kindled defendant did nothing to extinguish it. Trainor defends his delinquency by declarations that: 'the marriage was bad from the beginning'; 'there was never any great amount of love'; 'she was unfaithful...