Malone, C. William

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The Protection Of Interests In The Marital RelationThe protection of interests in the marital relation by use ofactions for alienation of affections, criminal conversation and loss ofconsortium as a result of personal injury to a spouse is intimately de-pendent upon the existence of a right of consortium in the spouseprosecuting the action. The Supreme Court of Ohio has defined con-sortium as including the affection, solace, comfort, companionship andsociety incidental to the marital relationship as well as the domesticservices of the wife. 1At common law, the right of consortium was exclusively in thehusband and the courts protected his right from either intentional ornegligent injury. The wife was denied such a right, however, on thetheory that she lost her status as a legal entity upon marriage, andhad no legal right to the companionship or services of her husband.Even granting that she had such a right, she could not maintain anaction for its loss because she could only bring the action by joiningher husband as a party plaintiff, who, if recovery were permitted,would himself receive the proceeds of any judgment.2With the passage of the Married Women's Acts,3 designed to placethe wife on a legal parity with her husband, married women began toassert a right of action for loss of consortium. Thus the question arosewhether, by virtue of the changed legal status of a married woman,she now possessed a right of consortium and, if so, whether she couldmaintain an action for the loss of this right.At this point the meaning of consortium becomes uncertain asa general proposition. The right seems to be divided into a "senti-mental" side, the right to affections, companionship, exclusive sexualintercourse and comfort, and a "services" side, the husband's right tothe domestic services of his wife.4 The Ohio courts, following themajority of courts in this country, have adopted the view that bothhusband and wife possess a right of consortium respecting sentimentalinterests in the marital relationship.5 On the other hand, the courtshave been generally in accord in denying the wife a right to con-sortium in her husband's domestic services, while granting the husbandsuch a right in the wife's services. This distinction is questionable bothfrom a logical and a historical standpoint.1 Smith v. Nicholas Bldg. Co., 93 Ohio St. 101, 112 N.E. 204 (1915).2 Westlake v. Westlake, 34 Ohio St. 621, 32 Am. Rep. 397 (1878); Flandermeyerv. Cooper, 85 Ohio St. 327, 98 N.E. 102 (1912).3 84 Onio LAws 132 (1887), OHIo GEN". CODE §§ 8002-I et seq. (Supp. 1951).4 Holbrook, The Change in the Meaning of Consortium, 22 Mric. L. REv. 1(1923); Lippman. The Breakdown in Consortium, 30 COL. L. REv. 651 (1930).5 Flandermeyer v. Cooper, supra note 2; Smith v. Lyon, 9 Ohio App. 141, 29Ohio CA. 492 (1918).COMMENTSBefore the Married Women's Acts, the common law gave only thehusband the right to his spouse's domestic services, based upon thetheory that the wife was her husband's servant. "The same principlesas were applied to the servant," says Holdsworth, "were applied tothe wife."0 With the passage of the Acts, the extension of equality tothe wife destroyed the servant concept as a basis for the right. Thus,the courts were compelled to decide whether the husband's right tohis wife's services had become obsolete and should be abolished,whether the wife was now to have an equal right to the services of thehusband, or whether the historical basis of the right in the husbandwas to be ignored but his right preserved on some other theory. Themajority of jurisdictions, including Ohio, have adopted the latterchoice,7 while continuing to deny the wife a similar right to herhusband's services,8 although a few courts have given both equalrights.9Although it is generally stated that both the husband and wifehave a right of consortium, the court's have vigorously denied thateach is entitled to the same right, in the face of legislation purportingto give equal rights to the parties to the marital relation. The onlypossible explanation is that traditions have caused our courts to refuseto recognize clearly worded statutes, a phenomenon which is hardlya novelty in the law.Having established that both parties to the marital relationpossess a right of consortium of one type or another, additional diffi-culties arise as to when each may enforce such a right.ALIENATION OF AFFECTIONSThe action for alienation of affections exists for the purpose ofprotecting the right of consortium from intentional and maliciousinvasion by an outsider.The right of consortium which the courts are here protecting isthe "sentimental" type, i.e., the right to affection, companionship,exclusive sexual intercourse and comfort. Thus both spouses have anequal right, and the courts have been almost unanimous in allowingboth to bring an action for alienation of affections to protect theright.1oIn order to recover for alienation of affections, some act of re-6 8 HomsWORTH, HISTORY OF ENGLISH LAW 429 (3rd. ed. 1933).7 3 VERNIER, AMEJUcAN FAMILY I.AWS 86 (1935).8 Shaveker v. Spinell, 125 Ohio St. 423, 181 N.E. 896 (1932); B. & 0. R. Co. v.Glenn, 66 Ohio St. 395, 64 N.E. 438 (1902).9 Eliason v. Draper, 25 Del. 1, 77 At. 572 (1910).10 Heitmann v. Slee, 43 Ohio App. 302, 182 N.E. 659 (1932); Smith v. Lyon,note 5 supra.1952]OHIO STATE LAW JOURNALstraint" or malice12 must be shown. The act must have been in-tentional; mere negligence resulting in alienation of affections will not,as a general rule, give a right of action.13 When the invasion is shownto have been intentional, and where affections were alienated as aresult, legal malice will be presumed from the knowledge of the in-vader that the wayward spouse was married. The theory is that fromsuch knowledge - a necessary ingredient to the maintenance of theaction - a malicious intent may be implied.14Alienation of affections must have resulted as a consequence ofthe invader's act. Connivance by one spouse to bring about the thirdperson's invasion of the marital relation will preclude the connivingparty from maintaining an action. So also where the alienation resultedfrom the neglect, lack of support' 5 or other improper conduct of theplaintiff.'8 A mere *voluntary bestowal of affections on a third partywithout any act inducing such bestowal will not give a cause of action.17It is not essential to the maintenance of the action that the acts com-plained of caused an actual separation' s or that adultery has beencommitted, if alienation of affections can be shown. 19 Moreover, adivorce procured by the spouse whose rights are alleged to have beeninvaded, subsequent to the acts complained of, will not preclude thatperson from bringing an action for the alienation.20The question of the liability of parents and relatives of a spousefor alienation of affections has often arisen, giving the courts a diffi-cult problem in view of the close and confidential family relationshipof the parties involved. In general, the courts have applied the samerules in this situation as in those where the invader was a stranger tothe family relationship. Legal malice, however, will rarely be im-plied; the intention of the parents must clearly be shown tohave beento invade the marital relation rather than to protect their child. Wherethe parents have an honest and reasonable belief that it is necessary tohouse and protect their daughter although in fact there is no suchnecessity, they are not liable though the wife's affections for herhusband were alienated thereby.21Although the action is commonly spoken of as being one to11 Friend v. Thompson, W. 636 (Ohio 1834).12 Westlake v. Westlake, note 2 supra.13 Lillegren v. Burns Detective Agency, 125 Minn. 60, 160 N.V. 203 (1916).14 Stefanidk v. Kuhns, 44 Ohio Op. 288, 96 N.E. (2d) 318 (1950); Booth v.Krause, 45 Ohio L. Abs. 43, 65 N.E. (2d) 89 (1946).15 Myers v. Raynolds, 3 Ohio N.P. 186, 5 Ohio Dec. 619 (1896).16 Smith v. Lamneck, 9 Ohio L.R. 87 (1911).17 Bloomer v. Cherry, 5 Ohio L.R. 534 (1907).18 Binder v. Buller, 15 Ohio N.P. (N.S.) 394, 27 Ohio Dec. 653 (1914).19 Stefanidk v. Kuhns, note 14 supra; Booth v. Krause, note 14 supra.20 Heitmann v. Slee, note 10 vupra.21 Holtz v. Dick, 42 Ohio St. 23, 51 Am. Rep. 791 (1884).[Vol. 13COMMENTSprotect the right of consortium, it is actually in the nature of com-pensation for the loss of and a penalty for the invasion of the right ofconsortium, the harm already having been done by the time the actionis brought. The Ohio courts have consistently refused beforehandprotection of the right, by the use of injunctive relief directed againstthe invader, on the quite familiar theories that the injunction wouldbe difficult to enforce and that a right of consortium is not a "property"right for the protection of which injunctive relief will issue.2 2CRIMINAL CONVERSATIONThe action for criminal conversation is said to be supplementaryto that for alienation of affections. Robert A. Brown, in his treatmentof the subject, states the distinction as follows: "The line between thetwo actions is necessarily somewhat indistinct, but criminal conversa-tion is the more definite action. Its defect, which the action foralienation of affections corrects, is that a criminal conversation actionfurnishes no adequate protection against many serious injuries to themarital relationship which may not involve adultery, or if they doinvolve that offense, also involve an injury to the consortium in otherrespects. ' 23 Here again, both parties to the marital relation may bringthe action, the suit being allowed on the basis that, since the MarriedWomen's Acts, each spouse acquires the right to exclusive sexual in-tercourse as a fundamental right of the marriage contract, and theActs made this right of the wife enforceable. 21 From the language ofthe courts which, like Ohio, allow the action, it is dear that the rightof consortium involved in this action is of the "sentimental" type.The requirements for the maintenance of this action are far lessstringent than those of the action for alienation of affections. Here,the invader need have had no knowledge that his adulterous partnerwas married, nor need he have been the moving party to the adulterousrelations. No alienation of affections need have resulted, as the actionis based wholly upon the act of adultery in violation of the otherspouse's exclusive right to sexual intercourse. 25PERSONAL INJURY TO A SPousEAt common law, as we have already seen, no right of consortium-was recognized in the wife, and she could not maintain an action for22 Snedaker v. King, 111 Ohio St. 225, 145 N.E. 15 (1924).23 82 UNIV. PA. L. REv. 474 (1934).24 Smith v. Lyon, note 5 supra.25 Baltrunas v. Baubles, 23 Ohio App. 104, 154 N.E. 747 (1926).OHIO STATE LAW JOURNALthe loss of her husband's consortium where he had suffered personalinjuries caused either by negligent or wilful acts. Only the husbandcould maintain such an action where his wife had been injured.2 6After the Married Women's Acts, however, removing the commonlaw disabilities of the wife, we have seen that the wife was granted aright of action for alienation of affections and criminal conversation toprotect her newly acquired "sentimental" type of consortium; whilethe husband is entitled to protection of both the "sentimental" typeand the "services" type of consortium. It would seem that the wifeshould at least be entitled to the protection of her admittedly inferiorright of consortium in all instances where that right has been injured,but such has not been the case, and the wife here again suffers an in-equality. The courts have consistently denied the wife a remedy wherethe loss of consortium was due to a negligent injury to her husband.27By the great weight of authority the wife is said to have no remedy forsuch injuries to her husband, although the husband's right of actionfor negligent injury to his wife was early recognized.2 8 This denial ofan equal right of action has been almost universally condemned bylegal writers.29 The incongruity of the situation is aptly presentedby Vernier who states, "The majority view which thus gives thehusband an action for a negligent injury to the wife, yet which deniesa similar action to her, is logically inconsistent in view of the equalityof married women."3 0The various theories advanced by the courts in following such adivergent path can be reduced to the following: (1) No statute givesthe wife a cause of action; (2) the injury is one for which the husbandcan sue; (3) the injury is remote and inconsequential to the wife, and(4) the injury to the wife is indirect and so not compensable. It issubmitted that each of these reasons for denying the wife an action isan equally good reason for denying the husband such an action wherethe wife has suffered negligent injury. But still a double standardcontinues.Hope for an early rectification of this inequality has been createdby a few scattered cases giving the wife an equal right with her husbandfor loss of consortium due to a negligent injury.3 ' In Ohio, only onecase has been found giving the wife such an action, a decision of theCincinnati Superior Court in 1913.32 The Supreme Court has, how-26 Westlake v. Westlake, note 2 supra.27 Smith v. Nicholas Bldg. Co. note I supra.28 B. & 0. R. Co. v. Glenn, note 8 supra.29 PROSSER, TORTS 948 (1st. ed 1941).'30 3 VERNIER, AMERICAN FAMILY LAWS 86 (1935).31 Hitaffer v. Argonne Co., 183 F. 2d. 811 (D.C. 1950).32 Griffen v. Cincinnati Realty Co., 27 Ohio Dec. 585, 15 Ohio N.P. (N.S.) 123(1913).[Vol. 13COMMENTSever, subsequently adhered to the majority view.33Ohio has afforded the wife as well as the husband an action for lossof consortium where the injury was caused by wilful act. Thus, thewife may maintain an action against one who sells her husbandmorphine against her protests34 or for unlawfully supplying herhusband with intoxicating liquors.3 5CONCLUSIONThe unsatisfactory state of the law concerning the right of con-sortium and its enforcement, brough about by illogical and unequalrights in the parties to the marital relation, plus the evils of excessiveverdicts, coercive settlements and unfounded actions, have causedmany states to legislate away rights of action to protect the right ofconsortium. Ohio has not yet done so, although bills providing for theabolishment of so-called "heart balm" suits, including alienation ofaffections and criminal conversation, have been before the GeneralAssembly.36 Yet with all the contradictions and illogical resultsachieved by the courts in their seemingly groping attempt to give aright of consortium to each of the spouses and to protect that rightfrom invasion by outsiders, it is still entirely possible that the rightand the remedies provided to protect it warrant all their troublesomefeatures by reason of their effect in discouraging the intentional break-ing up of the marital relation by strangers to it. A device of any valuewhatsoever in protecting the home and the family unit from all toocommon disorganization should, today, be carefully examined beforeit is discarded, whatever faults it may contain.C. William Malone.33 Smith v. Nicholas Bldg. Co., note 1 supra.34 Flandermeyer v. Cooper, note 2 supra.35 Suligan v. Holmes, 2 Ohio L. Abs. 779 (1923).36 House Bill No. 186, 93rd General Assembly of Ohio (1939); Senate Bill No.192, House Bill Nos. 123, 170, 91st General Assembly of Ohio (1935).

The Protection Of Interests In The Marital Relation

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The Protection Of Interests In The Marital Relation

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