Felsenthal v. McMillan

493 S.W.2d 729, 16 Tex. Sup. Ct. J. 247, 1973 Tex. LEXIS 271

• Court: Texas Supreme Court
• Decided: March 28, 1973
• Docket: B-3485
• Status: Published

Opinions

GREENHILL, Chief Justice.

This action was brought by a husband for alienation of affections and for criminal conversation because of alleged acts of sexual intercourse between the husband’s wife and the defendant. The facts are set out in the opinion of the court of civil appeals. 482 S.W.2d 9. The trial court entered summary judgment for the defendant. The court of civil appeals, noting that there had been no alienation of the affections of the husband or wife as shown in their depositions, nevertheless held that the trial court erred in granting a summary judgment as to the cause of action for criminal conversation. We affirm.

The court of civil appeals correctly held that the tort of criminal conversation is part of the common law adopted by this state in Article 1 of the Texas statutes.¹ That such tort was a part of the common law of England and as declared by the several states is set out in 1 Harper & James on Torts (1956) 609 et seq.; Restatement of Torts, Section 685; Prosser, Law of Torts (4th ed. 1971) 876 and 887; and 41 Am.Jur.2d 402 et seq.; and other authorities.

At common law, only the husband could bring the action. Because of equal rights statutes and because of a recognition of rights of equal protection, the wife also has been held to be able to maintain the action in all states where the matter has arisen. That matter is not before us, but we could not live with the action on any other basis. If the husband partakes of this conversation, the wife’s interests are equally infringed and her rights to legal redress must he the same. This suggests the possibility of an aggrieved husband suing a conversing husband of an aggrieved wife who also sues the conversing wife of the aggrieved husband. It is an unsavory picture. Such a suit is not a pleasant one in any context. Perhaps that is why we so seldom see a suit of this nature and perhaps the aggrieved spouse should not expect to recover anything but nominal damages in the case where the besmirched spouse has participated willingly.

Nevertheless, the petition alleges a wrong and a harm. The aggrieved spouse is surely injured whether or not the affections of the conversing spouse have been alienated. And it may be noted that rape is included in the tort of criminal conversation. Restatement of Torts, Section 685, comments b and c; and the mental anguish and other injuries to the offended spouse may be quite real.

We have found no court which has abolished the tort or refused to recognize it as part of the common law, and we decline to do so. If the Legislature, which is now in session, desires to act in the matter, that, of course, is its prerogative.

The Legislatures of 10 or 12 states have enacted “Heart Balm” statutes to abolish the torts of alienation of affections, criminal conversation and breach of promise to marry, or one or more of such torts.² Most of those legislative acts appear to have abolished the tort of criminal conversation. But no such action has been taken by the Texas Legislature. Such a statute was considered in 1935, but it failed to pass. See House Journal (1935) pages 1929-30.

The judgment of the court of civil appeals is affirmed.

Dissenting opinion by STEAKLEY, J., in which WALKER, POPE and DEN-TON, JJ„ join.

1 . The article is also article 1 of Vernon’s Annotated Civil Statutes. As to wliat common law was adopted in Texas see: Great Southern Life Ins. Co. v. City of Austin, 112 Tex. 1, 243 S.W. 778 (1922) ; Grigsby v. Reib, 105 Tex. 597, 153 S.W. 1124 (1913).

2 . Prosser, Laws of Torts (4th ed. 1971) at page 887. A basis for such statutes is that “Heart Balm” lawsuits may be more useful for blackmail purposes than to preserve and protect marriages and the rights of the spouses. Comment, Piracy on the Matrimonial Seas — The Law and the Marital Interloper, 25 Southwestern Law Journal 594 (1971) ; Feinsinger, Legislative Attack on “Heart Balm,” 33 Mich. L.R. 979 (1935) ; Casenote, 22 Va.L.Rev. 205 (1935). The writer’s unwillingness to extend the application of causes of action of this nature is set out in the dissent in Kelsey-Seybold Clinic v. Maclay, 466 S.W.2d 716 (Tex.1971) at 720.