Appeal by plaintiff from the Circuit Court of Cook county; the
Hon. HARRY M. FISHER, Judge, presiding. Heard in the second
division of this court for the first district at the October
term, 1951. Affirmed. Opinion filed July 3, 1952. Released for
publication July 17, 1952.
MR. JUSTICE TUOHY DELIVERED THE OPINION OF THE COURT.
Plaintiff filed her complaint consisting of two counts against the defendants. The first count, which is not involved in this appeal, charges defendant Samuel Glickstein with breach of promise to marry the plaintiff. The second count charges defendants Sidney Glickstein, Morris Glickstein and Goldie Geyer, who are brothers and a sister of defendant Samuel Glickstein, with having maliciously induced defendant Samuel Glickstein to breach his agreement to marry, by making false, malicious and scandalous statements of and concerning the plaintiff to the said defendant Samuel Glickstein. From an order of the circuit court of Cook county dismissing the suit of the plaintiff as to the defendants Sidney and Morris Glickstein and Goldie Geyer, hereinafter referred to as defendants, and a judgment for costs, plaintiff appeals.
Plaintiff contends that the complaint states a good cause of action. She maintains (1) that any and all persons who maliciously cause a breach of promise to marry are liable in damages to the injured party, and (2) that even though procuring a breach of a marriage contract be regarded as an exception to the general rule of third-party liability, third parties are nevertheless liable for libelous or slanderous statements, and a cause of action in slander is set forth in the second count of this complaint.
Defendants contend (1) that third parties are not liable for causing a breach of promise to marry, even though maliciously inspired, and (2) that the complaint in the instant case is insufficient to support a cause of action in libel or slander.
While the law of this State is well established that third persons are liable for maliciously procuring a breach of contract, Doremus v. Hennessy, 176 Ill. 608, the question of whether or not malicious interference with a contract of marriage is an exception to the general rule has not heretofore been passed on by the courts of this State. There is, however, well reasoned authority in several foreign jurisdictions to support the proposition that in the absence of slanderous or libelous words, no cause of action will lie against a third person for causing a breach of contract to marry, even though instigated maliciously. The general statement of the exception appears in Cooley on Torts (3d ed.), at page 494, in the following language:
"The prevention of a marriage by the interference of a third person, cannot, in general, in itself, be a legal wrong. Thus if one, by solicitations, or by the arts of ridicule or otherwise, shall induce one to break off an existing contract of marriage, no action will lie for it, however contemptible and blamable may be the conduct. But a loss of marriage may be such a special injury as will support an action of slander or libel, where the party was induced to break off the engagement by false and damaging charges not actionable per se."
The rule thus pronounced seems to have been based upon the salutary premise that fullest freedom be permitted interested third parties to inform each of the parties to the marriage contract of the qualities, habits, peculiarities and reputation of the other before marriage in order that the permanency of the subsequent marital relationship might better be ensured. This principle of freedom to exchange information in this respect was regarded of such importance as to justify the risk of an occasional abuse by maliciously motivated individuals.
In Homan v. Hall, 102 Neb. 70, the court gave the following reason for adhering to the principle:
"The right of engaged parties to ask advice of their friends and the right of the friends to give advice has never been denied. To hold that a third party may be subject to answer in damages for advising or inducing an engaged person to break the engagement might result in a suit by every disappointed lover against his successful rival. The state has an interest in the marriage relation, and until the marriage is solemnized no domestic rights exist, and therefore cannot be violated."
In Conway v. O'Brien, 269 Mass. 425, the court said at page 428:
"Upon grounds of public policy we are of opinion that this action cannot be maintained. Although marriage is a civil contract, it is a relation between the parties which intimately concerns the welfare of society and the State, and the parents and other relatives and friends of the contracting parties ought to be free to advise them without incurring a liability to be called upon to respond in damages where such advice results in the breach of the contract to marry."
To the same effect are the cases of Clarahan v. Cosper, 160 Wn. 642; Abelman v. Holman, 190 Wis. 112; Guida v. Pontrelli, 114 Misc. 181, 186 N.Y.S. 147; Stiffler v. Boehm, 124 Misc. 55, 206 N.Y.S. 187; Ryther v. Lefferts, 232 App. Div. 552, 250 N.Y.S. 699; and Leonard v. Whetstone, 34 Ind. App. 383, 68 N.E. 197. In the Ryther case the court stated (p. 700):
"The question before us is whether or not the damage action for inducing a breach of contract is to be extended beyond the commercial phases to which it has been applied in the great majority of cases, and made to support a cause of action where the contract procured to be broken is an engagement of marriage. Such a contract should rest upon love and affection rather than upon mere commercial motives.
"Marriage is an institution upheld and favored by the state as creating a status upon which rests the structure of society. Parties before entering upon that status should not be hindered in securing information and advice from all sources so that they may become thoroughly informed of all ...