Fennell v. Littlejohn

• Citation: 240 S.C. 189,125 S.E.2d 408
• Decision Date: 25 April 1962
• Docket Number: No. 17903,17903
• Parties: Hardy P. FENNELL, Jr., Plaintiff-Respondent, v. R. J. LITTLEJOHN, Defendant-Appellant.
• Court: United States State Supreme Court of South Carolina

Page 408

125 S.E.2d 408

240 S.C. 189

Hardy P. FENNELL, Jr., Plaintiff-Respondent, v. R. J. LITTLEJOHN, Defendant-Appellant.

No. 17903.

Supreme Court of South Carolina.

April 25, 1962.

Leatherwood, Walker, Todd & Mann, Greenville, for appellant.

Bolt & Bowen, Greenville, for respondent.

LEWIS, Justice.

This is an action by the plaintiff to recover damages which allegedly resulted from criminal conversation by the defendant with plaintiff's wife. The alleged adulterous acts of the defendant with plaintiff's wife, which form the basis of this action, occurred after the separation of plaintiff and his wife because of similar conduct of the wife with two other men, and after divorce proceedings had been instituted against the wife by the plaintiff on the ground of her previous adulterous acts. The defendant chiefly contends by way of defense that, since the plaintiff and his wife had separated before the criminal conversation with the defendant took place, the marital rights had ceased to exist and such prior separation operated as a bar to this action.

A trial of the cause resulted in a verdict for the plaintiff for $2,000 actual damages and $16,000 punitive damages. After the verdict the defendant moved for judgment in his favor notwithstanding the verdict upon the grounds (1) that the prior separation of plaintiff and his wife operated as a bar to this action and (2) the evidence was insufficient to sustain a verdict for punitive damages. An alternative motion for a new trial was made upon the grounds (1) that the verdict was the result of passion and prejudice on the part of the jury and (2) that the trial judge erred in refusing to allow the defendant on cross examination of the plaintiff to show that, although plaintiff had filed suit against the defendant, no suit had been filed against the other paramours of the wife, whose adulterous conduct actually caused the disruption of plaintiff's marriage. The trial judge concluded that the verdict for punitive damages was excessive and ordered a new trial unless plaintiff remitted upon the record one half of such amount, but otherwise denied all of the motions of the defendant. The plaintiff duly remitted the amount of the verdict found by the trial judge to be excessive, leaving judgment to be entered against the defendant in the amount of $2,000 actual damages and $8,000 punitive damages. From this judgment the defendant has appealed.

The facts out of which this controversy arose are not in dispute. The plaintiff and his wife were married in 1948 and resided in a home owned by the plaintiff in Greenville, South Carolina. They have one child, a daughter. In 1954 the plaintiff and his wife separated for several months due to improper relations of the wife with one Rivers. They were subsequently reconciled and lived together until the latter part of October, 1959, when the wife was caught in an adulterous affair with one Erickson. Following this, the plaintiff left the home and instituted divorce proceedings against his wife, charging her with adulterly with Rivers in 1954 and Erickson in October, 1959. After the separation and institution of divorce proceedings, the wife continued to occupy the home, with the plaintiff contributing to its maintenance. In November, 1959, about one month after the last separation of plaintiff and his wife, the wife was employed by the defendant to do office work, being recommended by the plaintiff who was also employed part time by the defendant to do the accounting work for has various business enterprises.

A hearing was held in the divorce proceedings on January 5, 1960, at which the defendant appeared as a witness on behalf of the wife. The plaintiff testified at the time that he did not think there was any possibility of a reconciliation with his wife. Subsequently, on February 8, 1960, in accordance with the statute (Section 20-110, 1952 Code of Laws of South Carolina), the Master, to whom the divorce proceeding was referred for hearing, held a conference with the plaintiff and the wife in an effort to effect a reconciliation, but was unable to reconcile their differences.

On March 25, 1960 the defendant was caught in the act of adultery with plaintiff's wife in the home provided for her by the plaintiff. This action was instituted on April 4, 1960. After the adulterous affair between the wife and the defendant, the divorce proceeding was reopened on April 16, 1960 and the defendant was named as one of those with whom the wife had committed adultery. The final divorce decree was issued on April 29, 1960, finding the wife guilty of adultery with Rivers, Erickson and the defendant.

The first question for determination in this appeal is whether or not a husband may maintain an action for criminal conversation, when the act adultery complained of occurred subsequent to the separation of the husband and wife and after the institution by the husband of a divorce action, but before the final divorce decree. From the foregoing facts it is seen that the act of adultery actually proven between the defendant and plaintiff's wife occurred on March 25, 1960, five months after the separation of the plaintiff and his wife and the institution of divorce proceedings, about three months after a hearing in the divorce proceeding, and about forty-five days after an unavailing reconciliation conference, but approximately one month before the final divorce decree was granted legally dissolving the marriage between plaintiff and his wife.

In deciding the foregoing question, it is necessary to determine the nature of the cause of action for criminal conversation. While the common law action for criminal conversation has long been recognized in this State, it appears that only two such cases have heretofore been presented on appeal, Haney v. Townsend, 1 McCord 206; Torre v. Summers, 2 Nott & McC. 267. The first concerned the form of the action in such cases and in the second questions arose as to the excessiveness of the damages allowed and the admissibility of evidence. Neither determines the question now before the Court.

The action for criminal conversation is generally not looked upon with favor and as stated in the foregoing case of Torre v. Summers: 'Upon its general character and tendency, and the feeling it is calculated to excite, there can be but one opinion and one wish; i. e., the anticipation that the case can seldom arise, and the hope that it will not be brought without both merits and a prudential consideration of the exposure incident to such actions.'

Criminal conversation means adulterous relations between the defendant and the spouse of the plaintiff. Rheudasil v. Clower, 197 Tenn. 27, 270 S.W.2d 345, 46 A.L.R.2d 1083. And to sustain the action it was necessary for the plaintiff to establish two things, namely: (1) The marriage between the spouses, and (2) sexual intercourse between the defendant and the wife during coverture. 42 C.J.S. Husband and Wife § 698, b, p. 353; 27 Am.Jur. 136, Section 536.

Alienation or loss of affections is not a necessary element of the action. Oliver v. Oliver, 159 Neb. 218, 66 N.W.2d 420; Lankford v. Tombari, 35 Wash.2d 412, 213 P.2d 627, 19 A.L.R.2d 462; Hargraves v. Ballou, 47 R.I. 186, 131 A. 643.

There is a distinction between an action for alienation of affections and one for criminal conversation. While both are based on the injury to the right to consortium, they are generally regarded as essentially different. A cause of action for either may exist without the other. The principle is thus stated in 27 Am.Jur. 136, Section 536:

'The causes of action for criminal conversation and for alienation of affections are alike in that each arises from the marriage relation and is for a tort against the right to consortium, but they differ in that the latter is for loss of consortium or affection and does not necessarily, although it may, involve such a loss through adulterous intercourse, whereas the former is for the adulterous intercourse or criminal conversation, the alienation of affections and other consequent injuries to the consortium, such as loss of service, being only matter of aggravation and not necessary to the cause of action.'

The basis of the cause of action for criminal conversation is the invasion of the marital relationship. While marriage is in one sense a private contract between the parties, it is also a relationship in which the state is vitally interested and, because of such interest, the law attaches thereto certain rights and duties, irrespective of the wishes of the parties. Marriage is in its nature a permanent status and has been properly referred to as the most important of all civil relations. The relationship, once entered into, cannot be dissolved by consent of the parties. It continues until death or dissolution by proper judicial decree. As stated in the case of Brown v. Brown, 215 S.C. 502, 56 S.E.2d 330, 333, 15 A.L.R.2d 163:

'It is generally recognized that the public policy relating to marriage is to foster and protect it, to make it a permanent and public institution, to encourage the parties to live together, and to prevent separation. This policy finds expression in probably every state in this country in legislative enactments designed to prevent the sundering of the marriage ties for slight and trivial causes, or in any case except on a full and satisfactory proof of such facts as the legislature has declared to be cause for divorce. Such provisions find their justification only in this well-recognized interest of the state in the permanency of the marriage relation. 17 Am.Jur., Sec. 12, page 154. As said in Maynard v. Hill, 125 U.S. 190, 8 S.Ct. 723, 729, 31 L.Ed. 654; 'Other contracts may be modified, restricted, or enlarged, or entirely released upon the consent of the parties. Not so with marriage. The relation once formed, the law steps in and holds the parties to various obligations and liabilities. It is an institution, in...