{ "id": 1646462, "name": "Lucas v. Bishop", "name_abbreviation": "Lucas v. Bishop", "decision_date": "1954-12-13", "docket_number": "5-533", "first_page": "353", "last_page": "358", "citations": [ { "type": "official", "cite": "224 Ark. 353" }, { "type": "parallel", "cite": "273 S.W.2d 397" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "12 A. L. R. 2d 1171", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": 0 }, { "cite": "56 S. E. 2d 432", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "231 N C. 173", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628948 ], "opinion_index": 0, "case_paths": [ "/nc/231/0173-01" ] }, { "cite": "162 ALR, 819", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "162 A. L. R. 819", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "220 Ark. 871", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1660019 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/220/0871-01" ] } ], "analysis": { "cardinality": 616, "char_count": 8934, "ocr_confidence": 0.508, "pagerank": { "raw": 1.024333552930705e-07, "percentile": 0.5462136981731367 }, "sha256": "006c9d3ffa6cdca5f742bfb30f405dc9db113264c8a1f1e4080c9babad016c83", "simhash": "1:4d8cffe0eb2bdfe5", "word_count": 1478 }, "last_updated": "2023-07-14T14:46:52.725032+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Lucas v. Bishop." ], "opinions": [ { "text": "G-rifetn Smith, Chief Justice.\nKenneth L. and Wilma Lucas were divorced May 21, 1951, when their only child, Nick Alvin, was slightly more than three years of age. Wilma married Kenneth when she was seventeen. Decretal findings were that Wilma had been guilty of abuse; contempt, and studied neglect. By consent custody of the boy was awarded the mother.\nCharles Gr. Bishop, whose wife divorced him July 23, 1951, married Wilma two days later.\nIn June,\u20191951, Lucas sought an order divesting* Wilma of the custody to which he had agreed. He asserted that facts not known to him when the decree was rendered had come to his attention. The chancellor entered an order in substantial compliance with Lucas\u2019 petition. Wilma appealed and we reversed. Bishop v. Lucas, 220 Ark. 871, 251 S. W. 2d 126.\nIn September, 1953, Lucas as \u201cnext friend\u201d of his son sued Bishop for $50,000. It was alleged that prior to the divorce action brought by Lucas, Nick Alvin enjoyed a comfortable, happy home, but Bishop made clandestine visits in the course of which he enticed the child\u2019s mother to such an extent that her domestic affections were alienated; that following the Lucas divorce Bishop persuaded Wilma to establish a residence at Mabelvale \u201c. . . where he continued his malicious and wrongful conduct in alienating the affections of the plaintiff\u2019s mother from his father, [and for these reasons] Nick Alvin has been deprived of [the type of home heretofore referred to], the parental care of his mother and father in their home, [also] the financial security he was being afforded prior to such alienation of his mother\u2019s affections, and in all probabilities will be deprived of financial support and security he would have gotten in the future.\nA further allegation was that the defendant had done everything within his power to wrongfully influence the boy against his father, thus creating an antagonistic attitude.\nBishop demurred to the complaint. Wilma Bishop, as mother, natural guardian, and next friend of Nicky Alvin, moved to dismiss. This action was the equivalent of an intervention in which Bishop joined, and was sworn to by Wilma. The child, it was asserted, is with its mother and his stepfather in their recreated matrimonial status, where all of its necessities and conveniences are supplied, and where mother love touches the child\u2019s life in all of its phases.\nFrom orders sustaining Bishop\u2019s demurrer and granting the joint motion to dismiss Lucas has appealed.\nCommon sense and some knowledge of the practical affairs of life inform ns that six-year-old Nick Alvin did not initiate this suit. Lncas, who through unfortunate circumstances has been deprived of the custody of his son \u2014 an arrangement that when made involved mutuality \u2014now feels that the judiciary ought to shape for the boy\u2019s benefit a financial substitute for the conventional home environment that children have a right to expect from those who brought them into existence.\nUnfortunately the wrong here emphasized is one that has not been legislatively translated into dollar compensation in this state; nor does the common law supply a plaintiff\u2019s answer. The general rule regarding the right of a divorced husband or wife to sue for lost love because of acts or conduct subsequent to the decree seems to be that what is sometimes referred to in this character of proceedings as affection is non-existent, hence there was nothing to alienate.\nThe effect of Lucas\u2019 suit is to assert that Nick Alvin had a vested interest in the marital status of his father and mother with the inherent right to have that relationship maintained for his personal benefit, \u2014 an affiliation .that presumptively would have continued until the plaintiff was twenty-one years of age had it not been for Bishop\u2019s wrongful interference.\nAt the 1951 divorce trial Lucas testified that Wilma was a good mother and that she invariably took good care of her son \u2014 \u2018 \u2018 always, \u2019 \u2019 he said. The alienation for which compensation is now sought, therefore, is not Nick Alvin\u2019s loss of his mother\u2019s love; rather, it is the father\u2019s loss of Wilma\u2019s affections and their son\u2019s supposed legal right to be reared in an atmosphere of reciprocal concern.\nAppellant calls attention to Art. 2, \u00a7 13, of the Arkansas constitution: \u2018 \u2018 Every person is entitled to a certain remedy in the law for \u00bf11 injuries and wrongs he may receive in his person, property, or character. . . . \u201d\n! The argument is that unless relief is granted by this court'it is apparent that appellant will be without a remedy and that he will be deprived of just rights without due process of law.\nBut the difficulty is that in this state there is no statutory law to which recourse may be had, and the common law is not helpful, hence \u201cdenial of due process\u201d is rhetorical rather than substantive.\nThree states \u2014 Illinois, Michigan, and Minnesota, and a Federal court in Illinois \u2014 have applied the rule appellant would invoke. Perhaps the foundation case is Daily v. Parker, 7 Cir., 152 Fed. 2d 174, 162 A. L. R. 819. The determination that a child\u2019s rights should be protected by transumptive reasoning supported by the Illinois bill of rights found expression in the Daily-Parker opinion delivered in 1945. The federal tribunal said that when a state had not declared the law on a particular subject it had power to do so. Since that time the precedent has been followed by Illinois state courts.\nThe Daily-Parker case quotes at length from Dean Pound\u2019s Spirit of the Common Law, stressing the thesis that Anglo-American law \u201cis fortunate indeed in entering upon a new period of growth with a well-established doctrine of lawmaking by judicial decision.\u201d The process, says the author, is known as \u201cjudicial empiricism.\u201d Also relied upon are quotations from Pollock\u2019s 1939 edition of Torts, and Cooley\u2019s Third Edition of Torts, \u2018 \u2018 Family Rights, \u2019 \u2019 p. 464.\nCounsel for appellant concede that the Daily-Parker case and the Illinois, Michigan, and Minnesota decisions represent minority views against which are to be considered opinions in California, Colorado, Connecticut, Massachusetts, New Jersey, New York, North Carolina, Texas, Wisconsin and the IT. S. Court of Appeals for. the District of Columbia. An annotation on Daily v. Parker is to be found in 162 ALR, 819. There is editorial comment.\nIn Henson v. Thomas, 231 N C. 173, 56 S. E. 2d 432, 12 A. L. R. 2d 1171, the Supreme Court of North Carolina said: \u201cThe mutual rights and privileges of home life grow out of the marital status. Affection, guidance, companionship, loving care, and domestic service constitute, in part, the mother\u2019s contribution to the happiness and well-being of the family circle. Such obligations on her part are not legal in nature and may not be made the subject of commerce and barter at the counter.\u201d\nThe creation of a right of action for a child\u2019s benefit to compensate for loss of the intangible elements set out in the complaint here is a subject that addresses itself to the state\u2019s policy-forming department. Until the legislature has seen fit to designate the redress which, under Art. 2, \u00a7 13, of the constitution it has a right to do, the judiciary should not transgress the coordinate boundary established by Art. 4, \u00a7 1, of the constitution: \u201cThe power of the government of the State of Arkansas shall be divided into three distinct departments, each of them to be confined to a separate body of magistracy, to-wit :\u2022 Those which are legislative to one, those which are executive to another, and those which are judicial to another; [and, \u00a7 2] no person or collection of persons, being of' one of these departments, shall exercise any power belonging to either of the others. . . .\u201d\nBy this decision we do not wish to leave the impression that in no circumstances of affirmative aggravation or wanton misconduct affecting an infant that a third person could not be adjudged to have designed a course of conduct upon which a cause of action might be predicated under existing methods of redress. But we do hold that in the case at bar Lucas as next friend has not shown that financial compensation for the things complained of has been authorized by any law, and we are not persuaded that judicial empiricism is the answer.\nAffirmed.\nWebster\u2019s New International Dictionary gives the term a variety of meanings.\nFirst: \u201cThe method or practice of an empiric, as (a) pursuit_of knowledge by observation and experiment; (b) a practice of medicine founded on mere experience, without the aid of science or a knowledge of principles; (c) ignorant and unscientific practice; charlatanry; quackery; (2) the philosophical theory which attributes the origin of all our knowledge to experience, applied specially to British philosophy from Locke to Hume.\u201d", "type": "majority", "author": "G-rifetn Smith, Chief Justice." } ], "attorneys": [ "L. A. Hardin and Carl Langston, for appellant.", "Lasley, Spitzberg, Mitchell and Hays, for appellee." ], "corrections": "", "head_matter": "Lucas v. Bishop.\n5-533\n273 S. W. 2d 397\nOpinion delivered December 13, 1954.\nL. A. Hardin and Carl Langston, for appellant.\nLasley, Spitzberg, Mitchell and Hays, for appellee." }, "file_name": "0353-01", "first_page_order": 375, "last_page_order": 380 }