King, J.c.c., Temporarily Assigned.
[135 NJSuper Page 330] Defendants move for summary judgment on the ground that this action is barred by New Jersey's Heart Balm Act, N.J.S.A. 2A:23-1, which abolishes a right of action for alienation of affections, criminal conversation, seduction and breach of contract
to marry. The court must determine whether all of the allegations in the complaint, taken together, actually state the proscribed cause of action for alienation of affections, or whether any other causes of action for which plaintiff might recover are pleaded. It is now elementary that all pleadings shall be liberally construed, R. 4:5-7, and the essence of an actionable claim will be pieced out and sustained where the pleading is unclear. Wheeler v. Wheeler, 48 N.J. Super. 184, 197 (App. Div. 1957).
The complaint, drawn in one count, alleges that plaintiff was married to Fred Hafner, now deceased, on December 30, 1966. Defendant Otto Hafner is Fred Hafner's son by a previous marriage, and defendant Jane Hafner is Otto Hafner's wife. While plaintiff was on a trip to California in June of 1971, her husband suffered a stroke and was removed to his son's residence. Plaintiff returned to New Jersey on June 27, 1971 and discovered her husband's whereabouts after some investigation, but was refused permission to visit him by defendants. Plaintiff alleges that her husband was being detained by defendants against his will and would have returned to his marital home if permitted to do so. A court order, rendered on October 1, 1972, permitted plaintiff to visit her husband at defendants' residence and enjoined defendants from interfering in any way with the visits. Plaintiff alleges that during visitations pursuant to that order she was subjected to harassment and ridicule by defendants, and was interfered with in her attempted conversations with her husband. Ultimately, on February 23, 1972 defendants were ordered by the court to deliver Fred Hafner to the custody of plaintiff, which they did on February 24, 1972. Fred Hafner died on February 25, 1972.
Also set forth in the complaint is the allegation that plaintiff was deprived of support and maintenance for an eight-month period as a result of defendant Otto Hafner's intentional and wrongful acts. Defendant allegedly obtained a power of attorney in a fraudulent manner over the property
and funds of his father Fred Hafner on August 4, 1971. Until February 24, 1972 plaintiff received only two checks in the sum of $50 each from defendant, while her monthly expenses during that period amounted to approximately $750 a month. As damages plaintiff seeks compensation for "loss of consortium" and "severe emotional distress," as well as punitive damages for the intentional tort, counsel fees and costs, and "whatever other relief may be adjudged proper."
The cause of action for alienation of affections consists of wrongful conduct by a defendant which interferes with the marital relationship between spouses to the extent of causing a loss of consortium. Grobart v. Grobart, 5 N.J. 161 (1950); 42 C.J.S. Husband and Wife § 664 at 319; 41 Am. Jur. 2d, Husband and Wife, § 466 at 393; see also, Prosser on Torts (3 Ed. 1964), § 118 at 895; Restatement, Torts, § 683 et seq. (1938). The gravamen of the action is the loss of consortium, that is, the loss of marital affections, comfort, society, assistance and services of a spouse who has been wrongfully enticed away. Grobart v. Grobart, supra; Devine v. Devine, 20 N.J. Super. 522 (Ch. Div. 1952).
Plaintiff admits that paragraphs 17 and 18 of the complaint*fn1 arguably fall within the right of action abolished by N.J.S.A. 2A:23-1, but urges that the gist of the action, taken as a whole, is for the tort of intentional infliction of emotional distress. This tort has not yet gained express recognition in New Jersey. A distinction must be drawn between recovery for emotional distress as an element of damages that may be recovered for an underlying tort, and the intentional infliction of emotional distress as a tort itself. Recovery has been routinely allowed for mental anguish or
emotional distress where some independent tort could be made out which would serve as a "peg upon which to hang the mental damages." Prosser, op. cit., § 11 at 44; Harris v. D.L. & W.R.R. Co., 82 N.J.L. 456 (1912) (Conductor liable in trespass de bonis asportatis for the indignities caused by the wrongful conversion of a railroad ticket); Spiegel v. Evergreen Cemetery Co., 117 N.J.L. 90 (1936) (recovery for ensuing mental distress supported by the tort of malicious interference with plaintiff's right to bury the dead and inter the remains); Kuzma v. Millinery Workers Union Local 24, 27 N.J. Super. 579 (App. Div. 1953) (recovery for mental anguish and emotional distress supported by the tort of malicious interference with employment); Morris v. MacNab, 25 N.J. 271 (1957) (defendant's action in fraudulently inducing plaintiff to enter into a marriage which he knew would be bigamous supported recovery for plaintiff's "sham, humiliation and mental anguish"). See also, Gray v. Serruto Builders, 110 N.J. Super. 297 (App. Div. 1970). The courts traditionally strive to discover some familiar and precedential basis of liability. In Spiegel, for instance, the right to bury the dead and inter the remains is characterized as a " quasi -right of property." 117 N.J.L. at 93. Prosser, in discussing the newly developing tort of the intentional infliction of mental distress, comments on Spiegel and similar cases dealing with the mishandling of dead bodies as follows:
In most of these cases the courts have talked of a somewhat dubious "property right" to the body, usually in the next of kin, which did not exist while the decedent was living, cannot be conveyed, can be used only for the one purpose of burial, and not only has no pecuniary value but is a source of liability for funeral expenses. It seems reasonably obvious that such "property" is something evolved out of thin air to meet the occasion, and that it is in reality the personal feelings of the survivors which are being protected, under a fiction likely to deceive no one but a lawyer.
Where the tort has been recognized it is generally agreed that the wrongful conduct must be so extreme and outrageous "as to go beyond all ...