Kane v. Quigley

0 ’Neill, J. The question presented is whether a minor child, acting through a parent as next friend, can maintain an action against a third party for wrongfully disrupting the family circle and depriving the child of affection, companionship and guidance of his father, and for bringing unwanted attention and unwarranted publicity to the child, causing him embarrassment, humiliation and loss of social standing. There is no statutory basis for such a cause of action in Ohio. Such an action is not known at common law. At common law, the benefits and duties accruing as a result of the family relationship are deemed to be social rather than legal. Some jurisdictions allow such a cause of action on the theory that the common law is sufficiently flexible to be adaptable to modern concepts of family obligations. This is the minority view. See Daily v. Parker (C. C. A. 7, 1945), 152 F. (2d), 174; Johnson v. Luhman (1947), 330 Ill. App., 598, 71 N. E. (2d), 810; Miller v. Monsen (1949), 228 Minn., 400, 37 N. W. (2d), — 3 — 543. Under this minority rule, the child is entitled to benefits of the marital relation as is the spouse. In Ohio, an action by the spouse against a third party is maintainable. Westlake v. Westlake (1878), 34 Ohio St., 621; Flandermeyer v. Cooper (1912), 85 Ohio St., 327. The basis for such action is the right of consortium or conjugal society, a right growing out of the marital relation and limited to the spouse. No right of consortium exists between a parent and child. See Whitcomb v. Huffington (1956), 180 Kan., 340, 304 P. (2d), 465; Morrow v. Yannantuono (1934), 152 Misc., 134, 273 N. Y. Supp., 912; Garza v. Garza (Tex. Civ. App., 1948), 209 S. W. (2d), 1012. A child may indeed expect that his parent will have affection for him. This may be a moral obligation, but no legal obligation exists. The sole legal obligation imposed upon the parent is that of support. See Sections 2151.42, 3103.03 and 3109.05, Revised Code. See, also, Henson v. Thomas (1949), 231 N. C., 173, 175, 56 S. E. (2d), 432, 434; Lucas v. Bishop (1954), 224 Ark., 353, 273 S. W. (2d), 397. Several reasons have been advanced as justifying the refusal to allow recovery by children, i. e., that this invades the province of the Legislature, that there is a danger of multiplicity of suits, that there is a possibility of fraud, and that it would place the love and affection of the parent on a commercial basis. Taylor v. Keefe (1947), 134 Conn., 156, 56 A. (2d), 768; Whitcomb v. Huffington, supra; Henson v. Thomas, supra; Morrow v. Yannantuono, supra; Nelson v. Richwagen (1950), 320 Mass., 485, 95 N. E. (2d), 545; Gleitz v. Gleitz (1951), 88 Ohio App., 337; Scholberg v. Itnyre (1953), 264 Wis., 211, 58 N. W. (2d), 698. If there is a legal right to maintain an action, this court is bound by Section 16, Article I, Constitution of Ohio, to provide a forum to administer justice. There is no legal right in a child to maintain such an action for alienation of affections since that cause of action is based upon the right of consortium. On the facts of these cases, no cause of action has been stated for invasion of privacy. Housh v. Peth (1956), 165 Ohio St., 35, recognized that such a right existed in Ohio. It — 4 — was not the purpose of the court, in recognizing the right of privacy in Ohio, to extend it to all cases in which a person may be subjected to unwanted notoriety. No affirmative act was directed toward the plaintiffs in these cases and the resultant publicity was merely an incident of the alleged actions of the defendant. The invasion of the right to privacy may be defined in part as the wrongful intrusion into one’s private activities. It is clear that the defendant, while she may have disrupted the family circle to which plaintiffs belong, did not actually intrude personally upon the solitude of the plaintiffs. As to the third theory upon which plaintiffs attempt to predicate a cause of action, malicious procurement of a breach of a third-party beneficiary contract, there is no authority in Ohio law to sustain such a contention. The marital contract is the subject of statute. It is provided in Section 3103.01, Revised Code, that “husband and wife contract toward each other obligations of mutual respect, fidelity and support. ’ ’ Each spouse thus has contractual rights and obligations toward the other spouse. These rights may be enforced in an action for damages against anyone who wrongfully and maliciously interferes with the marital relationship and thereby deprives one of the society, affection and consortium of the other. Flandermeyer v. Cooper, supra. Under the provisions of Section 3103.03, Revised Code, the husband has a duty to support his wife and minor children. Under Section 3109.05, Revised Code, the court may order either or both parents to support or help support their children. See, also, Section 2151.42, Revised Code. The basis of this cause of action against an enticer who has disrupted the family must rest upon the marital contract. A spouse is the sole beneficiary of that contract. Therefore,, the cause of action must fail. The judgments of the Court of Appeals are, therefore, affirmed. Judgments affirmed. Taft, C. J., Zimmerman, Matthias, Griffith and Herbert, JJ., concur.