Opinion
September 7, 1961 —
October 3, 1961.
APPEAL from an order of the circuit court for Milwaukee county: ROBERT W. LANDRY, Circuit Judge. Affirmed.
For the appellant there was a brief by Lakes Marcuvitz, and oral argument by Alan Marcuvitz and by Jerold I. Perlstein, all of Milwaukee.
For the respondent the cause was submitted on the brief of Jack A. Berland of Milwaukee.
Action commenced by plaintiff Richard Chenow against defendant Dominic Aliota for alienation of the affections of plaintiff's wife. Defendant answered and moved for summary judgment. From an order denying the motion, defendant appeals.
In his complaint plaintiff alleges his marriage to Carol Chenow on September 10, 1955, and:
"4. That, upon information and belief, commencing on or about the 15th day of October, 1957, while the plaintiff was living and cohabiting with his said wife, the defendant, well knowing said Carol Chenow to be the wife of the plaintiff, and wrongfully contriving and intending to injure the plaintiff and to deprive him of her comfort, society, and aid, wilfully, wickedly, and maliciously gained the affections of the wife of the plaintiff, and has continued his wrongful and unlawful association with her down to the time of the commencement of this action, as plaintiff is informed and believes; that, upon information and belief, by reason of said association, said Carol Chenow became pregnant and sick with child; that on the 18th day of February, 1958, said Carol Chenow, by reason of said premises, was induced by the defendant to commence an action for divorce against the plaintiff.
"5. That the affection which the said Carol Chenow had theretofore had for the plaintiff was thereby alienated and destroyed, and the plaintiff was deprived of the comfort, aid, society, and assistance which he otherwise would have had from said Carol Chenow, and has suffered great distress of mind, body, and estate, to his damage . . .
The complaint was verified on January 20, 1959, and served February 4, 1959. As an affirmative defense in his answer, and in his affidavit in support of the motion for summary judgment, defendant states that the action is barred by the statute of limitations, sec. 330.22(2), Stats., more than a year having elapsed between October 15, 1957, and the time the complaint was verified and served.
In his counteraffidavit on the motion plaintiff states that his wife commenced an action for divorce on February 18, 1958, and that pursuant to an order of the court the parties separated on March 1, 1958, and specifically states that the summons and complaint were served on the defendant "within one year from the time the plaintiff's cause of action accrued by reason of his loss of consortium from said Carol Chenow, the former wife of the plaintiff."
It was the trial court's opinion that an issue of fact remains to be tried with respect to the application of sec. 330.22, Stats.
Sec. 330.22(2), Stats., provides that an action for damages for alienation of affections shall be commenced within one year after the cause of action has accrued.
The basis of a cause of action for the alienation of a wife's affections is loss of consortium — the wife's companionship and society, and her duties, such as conjugal affection and assistance, toward her husband. When the loss of consortium occurs, the cause of action accrues and the statute of limitations begins to run. Kasper v. Enich (1953), 265 Wis. 318, 61 N.W.2d 315; Harris v. Kunkel (1938), 227 Wis. 435, 278 N.W. 868; 42 C.J.S., Husband and Wife, p. 318, sec. 665; 27 Am. Jur., Husband and Wife, pp. 125, 140, secs. 523, 524, 541.
It is generally recognized that alienation of affections is a gradual process, usually a series of wrongful acts or persuasions taking place over a period of time and culminating in the loss of consortium of the spouse. See Anno. 173 A.L.R. 773.
We cannot agree with defendant that the allegations of par. 4 of the complaint constitute an admission that the cause of action accrued more than one year prior to the commencement of this action. It is there stated that " commencing on or about the 15th day of October, 1957, while the plaintiff was living and cohabiting with his said wife. the defendant, . . . gained the affections of the wife of the plaintiff." There is no difficulty in construing this language to mean that the defendant began an unlawful association with plaintiff's wife on October 15, 1957, a continuing association which ultimately led to plaintiffs loss.
In Arkens v. Bykowski (1955), 271 Wis. 357, 358, 73 N.W.2d 428, under similar facts, although involving a demurrer, this court held:
"The circumstances set out in the complaint may reasonably be construed to be that a cause of action arose within the year limited for the commencement of such an action. It is not timely under the state of the record before us to determine whether or not there had come to pass a complete ending of the relation which ordinarily exists between husband and wife. Although an action for divorce was pending during the month when plaintiff alleges the conduct on the part of the defendant occurred, there is reason on which to base the assumption `that the home of the parties would be re-established.' We quote from the trial court's opinion, in which he says: `In cases of separation as well as those in which divorce actions have been commenced, there is the ever-continuing hope of the re-establishment of the home of the parties. Where an action for divorce has been commenced, the parties are not strangers to each other. The marital status continues until terminated by a proper judgment of divorce.'"
We likewise construe the allegations of this complaint to be that there had not been an immediate loss of consortium on or about October 15, 1957. Thus, the issue as to when the loss actually occurred remains to be tried, and the trial court properly denied the motion.
Since the order is affirmed it is not necessary to discuss other questions raised on the appeal by the plaintiff.
By the Court. — Order affirmed.