(dissenting).
I am unable to agree that the partners of Dr. Brewer or the Kelsey Clinic are even potentially liable.
This suit was brought by a husband for the alienation of his wife’s affections. The acts alleged to have occurred were not any sort of assault or battery as in the Williams case from Pennsylvania relied upon by the majority opinion. The alleged *721acts involved here between Dr. Brewer and the plaintiff’s wife were between consenting adults; and obviously, they were committed in secret. The majority opinion correctly finds that Dr. Brewer was acting solely for his own personal gratification; that his conduct could not benefit the clinic m any way; and it assumes that his conduct was neither authorized nor ratified by the partnership. The Uniform Partnership Act provides for liability of the partnership for wrongful acts of a partner “acting in the ordinary course of the business of the partnership.” Article 6132b, § 13, Vernon’s Annotated Civil Statutes. I find no such action here.
The tort of alienation of affection is not one which is universally accepted. It has been abolished in several states by legisla-uve act. See Rotwein v. Gersten, 160 Fla. 736, 36 So.2d 419 (1948), and Grobart v. Grobart, 5 N.J. 161, 74 A.2d 294 (1950). In some states, the cause of action for damages, (and most of the damages recovered are exemplary or punishing damages rather than actual damages), has been abolished; but a remedy by injunction has remained. See 41 Am.Jur.2d § 463. The annotation in 158 A.L.R. says at page 618 that New York has abolished alienation of affection because it “has been subjected to grave abuses, causing extreme annoyance, embarrassment, humiliation and pecuniary damage to many persons wholly innocent and free of any wrongdoing, who were merely the victims of circumstances, and such remedies having been exercised by unscrupulous persons for their unjust enrichment, and such remedies having furnished vehicles for the commission . . of crime and in many cases having resulted in the perpetration of frauds. . . .”
At least some of those who defend the cause of action for alienation of affection concede that its application “should no doubt be somewhat limited.” Brown, The Action for Alienation of Affection, 82 Penn.L.Rev. 472 at 506 (1924); Feinsin-ger, Legislative Attack on “Heart Balm,” 33 Mich.L.Rev. 978 (1935).
It is not necessary here, in my opinion, to consider whether a cause of action for alienation of affection should be abolished because the suit against Dr. Brewer has been severed. But as I read the plaintiff’s petition, his suit is one for alienation of affection; and the question is whether a cause of action for alienation of affection should be extended to each of the members of a partnership consisting of some 30 doctors, or 15 architects, or 60 lawyers, or any other type of partnership, where none of the partners are even alleged to have had anything to do with the conduct of the consenting adults involved. The prayer is specifically that the partnership and Dr. Brewer pay the plaintiff a million dollars “because of the loss of consortium and affections of his wife,” and not for any other tort. My dissent is to what I regard as the extension of the tort of alienation of affection (by whatever name it is called) to people outside of those who actively, intentionally and maliciously participate in it, and whose acts actually produce the alienation.
The majority opinion, ably written, talks about interfering with family relations. The cause of alienation of affection is not one on behalf of the family. It is a cause of action for damages to the offended spouse only: — the loss to him of the affection and conjugal relations of his wife. For example, in Garza v. Garza, 209 S.W.2d 1012 (Tex.Civ.App.1948, no writ), the children of a marriage sued “the other woman” and their father because the other woman had alienated the affection of their father from their mother; and among other things, they lost the affection of their father and his financial support. The trial court, finding no judicial precedent to support a judgment for the plaintiffs, admittedly engaged in “lawmaking by decision;” and based on “the law of God * * * since the dark ages,” rendered judgment for the children for the alienation of the affection of their father. The court of civil appeals reversed and rendered judgment for the defendants. It reasoned that other remedies were available for the prop*722er support of the children; and that the alienation of affection suit was really based on the loss of consortium of the spouse. It’s a personal affair, not a suit for damages to the family.
A search of the books will reveal a great scarcity of cases involving a conspiracy of several people to alienate the affections of a spouse or cases which attempt to make several people joint tort-feasors. Nobody, so far as I have been able to ascertain, has ever brought such a case as this to an appellate court. There are cases where a husband has sued the parents of his wife for causing the wife to separate from the husband. In all of such cases, the parents, guardians, or relatives of the wife have been active participants in the alleged malicious alienation; and where they are not active participants, there is no cause of action against them. Even in such cases, the parents have some rights; and they are liable only if they act maliciously, without justification, from unworthy motives, and if their acts were the controlling cause of the alienation. The cases are collected in 41 Am.Jur.2d § 473 and in an annotation, 108 A.L.R. 408. The same rule applies where it is alleged that members of a church were alleged to have wrongfully persuaded the wife to leave her husband and to have caused the alienation of her affections from her husband. Hughes v. Holman, 110 Or. 415, 223 P. 730 (1924); Annotation 31 A.L.R. 1115.
The tort of alienation of affection is based on an intentional and malicious act of the defendant or defendants. It is not enough that the acts be the result of negligent conduct; i. e., as applicable here, that the other 29 partner-doctors of the Kelsey Clinic were negligent in not interfering. Thus in Lilligren v. Wm. J. Burns International Detective Agency, 135 Minn. 60, 160 N.W. 203 (1916) a husband, suspecting his wife of being unchaste, employed the defendant detective agency to follow his wife and to report to him. The agency negligently followed the wrong lady; and the lady who was followed led a very gay life. The agency reported its [erroneous] findings to the husband, the husband accused his wife, she was insulted, and she left her husband. The husband then sued the detective agency for the loss of the affections of his wife. Held, “the action is for an intentional, not merely a negligent tort.”
In summary, as I read the pleadings and the depositions on file, there are no relevant issues of fact and no basis in law for holding the partners liable for the secret acts of a partner with a consenting adult completely outside of the business of the partnership. Negligent acts will not give rise to damages for alienation of affection, and the record, at least to me, completely negatives any intentional, malicious acts by any of the partners except Dr. Brewer, which could have been the controlling cause of the alienation of affection involved.
I would affirm the judgment of the trial court.
McGEE, J., joins in this dissent.