NICHOLSON
v.
HAN.
Docket No. 2,399.
Michigan Court of Appeals.
Decided June 25, 1968.*37 Condit, Denison, Devine, Porter & Bartush, for plaintiff.
Feikens, Dice, Sweeney & Sullivan (Joseph Levin, of counsel), and John Houston, for defendant.
LESINSKI, C.J.
The circuit court granted defendant's motion for accelerated judgment[1] and entered an order for summary judgment of dismissal[2] from which the plaintiff appeals. The court believed the substance of the plaintiff's claim to be in the nature of an action for "alienation of affections, charging criminal conversation and seduction of a person over the age of 18 or more years" and therefore barred by statute.[3]
Defendant's motion for summary judgment was "governed by GCR 1963, 117, which permits such motion to be based, as it was here, on the ground that plaintiff's complaint failed to state a claim upon which relief can be granted. For the purpose of that motion, both at the trial and appellate levels, every well-pleaded allegation [of fact] in the complaint is assumed to be true." Bielski v. Wolverine Insurance Company (1967), 379 Mich. 280, 283. Accordingly, the following facts and allegations of fact which frame the legal issues are taken from the amended complaint and other papers filed in this cause.
Mr. Nicholson, the plaintiff herein, and his wife Marilyn, were experiencing marital difficulties. In December, 1960, plaintiff had occasion to consult the defendant, Dr. Maolin Han, a licensed physician, concerning an injury to plaintiff's left foot. During *38 the course of treatment, plaintiff told the doctor about his marital problems and received an offer of help. The plaintiff avers that defendant offered to reconcile plaintiff's marital problems through the use of psychiatry and other means and warranted that his marital relations would improve. Defendant told plaintiff that he had been successful with other patients. The plaintiff and his wife consulted defendant in his role as a psychiatrist and marriage counselor in December, 1960, and in 1961 and 1962; however, the plaintiff's marital situation deteriorated to such a point that Marilyn Nicholson obtained a divorce in February, 1962. The plaintiff had occasion to visit Northville State Hospital in the fall of 1964 and saw there a hospital record relating to his wife. The record revealed that Marilyn Nicholson told her physicians that she had been intimate with defendant. Later Marilyn Nicholson told plaintiff that her personal relationship with the doctor began in 1961 and continued into 1964. The plaintiff claims no knowledge of the relationship between defendant and his wife until he saw the hospital record in the fall of 1964.
The plaintiff brought this action against defendant charging him with utilizing the doctor-patient relationship to seduce plaintiff's wife. The amended complaint contains five counts alleging: (1) breach of contract, (2) malpractice, (3) assault and battery, (4) trespass on the case (negligence) and (5) fraud. Each count contains an allegation to the effect that defendant used the pretext of rendering psychiatric and marriage counseling services to deprive plaintiff of the services, companionship, and marital relationship of his wife by inducing her to engage in a sexual relationship and to divorce plaintiff. The plaintiff stated in opposition to the motions for accelerated and summary judgment that "there can *39 be no doubt that plaintiff's amended complaint includes elements which used to be recoverable through actions for criminal conversation or alienation of affections. However, that fact does not immunize defendant from suit."
The lower court found plaintiff's entire claim to be based upon torts abolished by statute and dismissed the action. The plaintiff appeals the court's ruling as respects counts 1 and 5 of the amended complaint for breach of contract and fraud.
The question before us is whether counts 1 and 5 of the amended complaint plead causes of actions unaffected by the statutory bar. CL 1948, § 551.301 (Stat Ann 1957 Rev § 25.191), reads as follows:
"All civil causes of action for alienation of affections, criminal conversation, and seduction of any person of the age of 18 years or more, and all causes of action for breach of contract to marry are hereby abolished."
The provisions of CL 1948, § 551.301, supra, were substantially re-enacted as CLS 1961, § 600.2901 (Stat Ann 1962 Rev § 27A.2901), in the following language:
"The following causes of action are abolished:
"(1) alienation of the affections of any person, animal, or thing capable of feeling affection, whatsoever;
"(2) criminal conversation;
"(3) seduction of any person of the age of 18 years or more;
"(4) breach of contract to marry."
In Miller v. Kretschmer (1965), 374 Mich. 459, 461, the Supreme Court concluded that "the reenactment of the above section [CL 1948, § 551.301], as modified by the legislature, has unquestionably spelled out a legislative decision to abolish all actions *40 for alienation of affections." Miller v. Kretschmer, supra, teaches that the ambit of the re-enacted statute extends beyond the orthodox action for alienation of a spouse for loss of consortium, conjugal society, and assistance of the other spouse.
We have momentarily digressed from our main inquiry concerning the nature of the appealed counts to make plain the fact that Michigan courts have taken the statute to mean exactly what it says. Further, it has been held that a bare reading of the statute is sufficient and no interpretation is necessary when the language employed by the legislature is plain, certain, and unambiguous. Van Antwerp v. State (1952), 334 Mich. 593. And "a plain and unambiguous statute is to be applied, and not interpreted, since such a statute speaks for itself, and any attempt to make it clearer is a vain labor and tends only to obscurity." City of Lansing v. Township of Lansing (1959), 356 Mich. 641, 649.
A reading of the statute here in question reveals no ambiguity or delphic meaning in the clear language employed by the legislature.
Count 1 alleges that defendant failed to perform a special agreement to reconcile and improve plaintiff's marital problems through the use of psychiatry and other means, "in that he failed to constructively counsel plaintiff and his wife and in that defendant failed to use psychiatry and in that he in fact induced plaintiff's wife to become friendly and intimate and to have sexual intercourse with defendant and induced plaintiff's wife to obtain a divorce from plaintiff."[4]
The plaintiff cites Stewart v. Rudner (1957), 349 Mich. 459, and Johnson v. Caldwell (1963), 371 Mich. 368, in support of his proposition that defendant *41 doctor made a special agreement enforceable under Michigan law. In the Stewart Case, the Court found that the language of the parties gave rise to an express promise on the part of the defendant physician to perform a caesarean section and that he breached the special agreement by failing to perform the operation at the mother's full term. In the Johnson Case, the language of the parties again indicated that the physician had made a special agreement to treat the plaintiff during and after pregnancy. The failure to provide proper post partum treatment was held a breach of contract.
The Court said in Stewart v. Rudner, supra, pp 467, 468:
"We have now to consider the contract made. A doctor and his patient, of course, have the same general liberty to contract with respect to their relationship as other parties entering into consensual relationship with one another, and a breach thereof will give rise to a cause of action. It is proper to note, with respect to the contracts of physicians, that certain qualitative differences should be observed, since the doctor's therapeutic reassurance that his patient will be all right, not to worry, must not be converted into a binding promise by the disappointed or quarrelsome. These qualifications we have in mind as we proceed."
This Court considers the above language especially salutary in this case where the plaintiff alleges a special agreement to effect a psychiatric cure related to the marital relationship. The warranties and representations alleged by plaintiff to show a special agreement to reconcile a marriage are, in another sense, qualitatively different from the special agreements found in the Stewart and Johnson Cases. This is not to say that a patient and his doctor cannot make an express contract for psychiatric services containing a warranty of "cure," *42 but such must very clearly appear from what was said by the parties at the time of making. The Court held in McInerney v. Detroit Trust Co. (1937), 279 Mich. 42, 46, that "an express contract may be defined as one in which the terms were openly uttered and avowed at the time of making." See, also, Woods v. Ayres (1878), 39 Mich. 345.
We are persuaded moreover that the substantial cause of action pleaded in count 1 is for alienation of affections and criminal conversation, not for breach of contract.
It is stated in 1 Am Jur 2d, Actions, § 8, p 549:
"The determination of whether an action is on contract or in tort requires knowledge of the source or origin of the duty, the nature of the grievance, and what is said concerning them in the pleading in the cause. The form cannot always be determined from the character of the damages claimed, although the relief demanded has in some cases been considered controlling. When the facts are plainly and distinctly stated, the action will be regarded either as one in tort or as one in contract, depending, first, upon the character of the remedy such facts indicate, and, second, upon what is the most complete and ample redress that the law affords upon the facts stated."[5]
Justice TALBOT SMITH put the matter admirably in a strong dissent in Baatz v. Smith (1960), 361 Mich. 68, 76:
"The pleader insists he is relying on the contractual cause of action, and so, in truth, the declaration *43 reads, but it is hopeless to rely upon verbiage alone, unless the wheel has come full circle and lawsuits will once more, as in medieval times, stand or fall upon the words employed in the writ.
"We should in determining the cause of action pleaded, examine the essential allegations of the complaint as a whole, stressing neither particular words nor particular allegations taken out of context. [Footnote omitted.] If the substantial cause of action pleaded is a tort action, the tort limitation would follow. If contract, the longer period."
Count 1 does not allege two substantial causes of action. It is founded on allegations of breach of contract; but the gravamen of the action sounds in tort, that is, the substance of the allegations denominate a tort. Clark v. Dalman (1967), 379 Mich. 251. "The authorities are uniform in holding that the nature of the action with respect to whether it is based on a breach of contract or sounds in tort must be determined by the gravamen, or essential facts or grievance as alleged, to be ascertained from a consideration of the pleading as a whole. 1 CJS, Actions, § 46, p 1100." Williamson v. Pacific Greyhound Lines (1944), 67 Cal App 2d 250 (153 P2d 990, 992).
The gist of the action for alienation of affections was "plaintiff's loss of his wife's society, services, and comfort by means of the tortious conduct of the defendant." Perry v. Lovejoy (1883), 49 Mich. 529, 531. The gist of the action for criminal conversation was proof of an actual marriage plus adulterous intercourse. Perry v. Lovejoy, supra. The action for alienation of affections necessarily involves intent to induce the spouse to separate and malice is conclusively presumed in the case of adultery. See 27 Am Jur, Husband and Wife, § 523, p 125. It is clear that the facts alleged in count 1 of the amended complaint place it squarely within *44 the abolished actions, i.e., the fact of plaintiff's marriage, the adulterous intercourse, the inducement to obtain a divorce and resulting loss of society, loss of services, pain and suffering rising from the marital relationship.
We are likewise persuaded that the claim of fraud in count 5 of the amended complaint falls squarely within the abolished actions. For here too, what is alleged constitutes an action for alienation of affections and criminal conversation in the same language found in count 1, and no action can be based thereon.
Affirmed, with costs to appellee.
McGREGOR and CANHAM, JJ., concurred.
NOTES
[1] GCR 1963, 116.
[2] GCR 1963, 117.
[3] CLS 1961, § 600.2901 (Stat Ann 1962 Rev § 27A.2901); CL 1948, §§ 551.301, 551.302 (Stat Ann 1957 Rev §§ 25.191, 25.192).
[4] Count 5 of the amended complaint claiming fraud contains identical language.
[5] The negligent breach of a contract involving misfeasance gives rise to an action for tort. See Clark v. Dalman (1967), 379 Mich. 251; Hart v. Ludwig (1956), 347 Mich. 559; and Chase v. Clinton County (1928), 241 Mich. 478. And cases involving the statute of limitations have required that a determination be made whether the pleaded action was essentially a contract or tort. See Baats v. Smith (1960), 361 Mich. 68; and Coates v. Milner Hotels, Inc. (1945), 311 Mich. 233.