Giltner v. Stark

• Decision Date: 26 June 1974
• Docket Number: No. 56168,56168
• Citation: 219 N.W.2d 700
• Parties: J. Norton GILTNER, Appellee, v. Joseph S. STARK, Appellant.
• Court: Iowa Supreme Court

Page 700

219 N.W.2d 700

J. Norton GILTNER, Appellee, v. Joseph S. STARK, Appellant.

No. 56168.

Supreme Court of Iowa.

June 26, 1974.

Bailey C. Webber, Ottumwa, for appellant.

Barnes, Schlegel & Walter, Ottumwa, for appellee.

Heard before MOORE, C.J., and MASON, LeGRAND, REES, and UHLENHOPP, JJ.

MASON, Justice.

This is an appeal by defendant, Joseph S. Stark, from a judgment rendered on an adverse jury verdict. J. Norton Giltner instituted a law action against defendant in the Jefferson district court seeking both compensatory and exemplary damages alleged to have been sustained as a consequence of defendant's wrongful interference with plaintiff's interest in the marital relationship existing between plaintiff and plaintiff's wife Carolyn.

The first division of plaintiff's petition is based on a claim for criminal conversation. In this division plaintiff alleged Stark willfully and maliciously had sexual intercourse with plaintiff's wife at various times during the period from the fall of 1970 until March 1971; that as a result plaintiff has been deprived of the comfort, society, companionship, assistance and services of his said wife.

In the other division plaintiff based his right of recovery on a claim defendant alienated the affections of Carolyn Giltner. In support plaintiff alleged he and his wife Carolyn were happy and content in their marriage until the fall of 1970 when defendant acquired an improper influence over plaintiff's wife and thereafter willfully and maliciously, with intent to injure plaintiff, enticed her away from plaintiff and alienated her affections.

After the close of all evidence defendant renewed five motions for mistrial made during the course of trial, moved to require plaintiff to elect between submission of the cause of action asserted in division 1 and that asserted in division 2 of the petition, moved for a directed verdict as to both divisions and to withdraw from jury consideration plaintiff's claim with respect to exemplary damages. All motions were overruled and the matter submitted to the jury which found for plaintiff on both causes of action and awarded $35,000 actual and $25,000 punitive damages.

Defendant's motion for new trial was denied and he brings this appeal assigning 12 issues for review.

J. Norton Giltner and Carolyn Giltner were married in 1959. They apparently enjoyed a good marriage relationship for quite a few years; they had satisfactory sexual relations, took vacations together, went fishing, to fairs and auto races, and even performed some of the farm work together. Plaintiff provided his wife with the necessities of life and some luxuries.

In 1965 plaintiff and his wife became acquainted with defendant and his wife. Thereafter they became quite good friends. On the night of December 4, 1970, after finding his wife gone, plaintiff and his brother-in-law searched the area and discovered her at the Gaslight Motel, north of Ottumwa. At this time she told plaintiff she was in love with defendant. Although Carolyn later returned to the home and again engaged in sexual relations with plaintiff (although at a much reduced level) she finally left on July 27, 1971. The following day the original notice of petition for dissolution of marriage was served on plaintiff.

During the summer months of 1971 Carolyn was seen with defendant on a deadend road in his pickup. From June 1970 to March 1971 she was seen with defendant in his truck and on several occasions was seen to kiss defendant while in the truck. A private detective hired by plaintiff's counsel on two occasions observed her and defendant enter a camper body located in a corn crib on a Jefferson county farm and remain there for over two hours. Charles Bennett, a witness for plaintiff, testified that Carolyn stated to him she and defendant loved each other and they were going away together. She stated to witness Vannoy she no longer loved plaintiff but he had not been mean to her and had been good to her. Defendant stated to Vannoy he was having an affair with plaintiff's wife which had gotten out of control. Witness Miller, Carolyn's stepfather, testified defendant stated to him that he couldn't leave her alone.

Plaintiff himself talked with defendant on December 6, 1971. Defendant stated he loved Carolyn and was willing to lose $5,000 for her.

The issues raised by this appeal, with some exceptions pointed out later, had been asserted in motion for new trial. They are evidentiary or procedural in nature and will be stated in some detail with relevant facts as the particular issue is considered in this opinion. The trial court's well-considered ruling on the motion in accordance with rule 118, Rules of Civil Procedure, has been most helpful to this court.

The issues will be considered other than in the order set forth in defendant's brief and argument.

I. One question to be determined is the propriety of the court's ruing denying defendant's motion to require plaintiff to elect for submission to the jury either the cause of action pled in division 1 or division 2. As indicated, plaintiff pled criminal conversation in division 1 and alienation of affections in division 2.

In this connection defendant does not contend the evidence was insufficient to submit both causes of action to the jury. Rather, he appears to take the position the jury could not understand the limited purpose of hearsay statements of the alienated spouse which were received in evidence as bearing on her state of mind or state of affections and therefore only one cause of action should have been submitted to insure defendant a fair trial. The court's instructions followed the pleadings in the case. It is presumed a jury obeys and understands the instructions of the court. Defendant does not question the ability of the jury to follow the instructions and properly consider the evidence in regard to the two different causes of action.

Although both criminal conversation and alienation of affections belong to the same class, arise from the marriage relation, and seek damages for loss of consortium, they are separate and distinct. They afford separate theories for one recovery.

The essential elements of a cause of action for alienation of affection are wrongful conduct of defendant, loss of affection or consortium and causal connection between such conduct and loss. An actual intent to alienate is not necessary if defendant's conduct is inherently wrong and tends to and does have the effect complained of. Mere loss of the spouse's affection does not render defendant liable unless his misconduct was a substantial factor in causing such loss. The right protected is freedom from wrongful interference by another causing the loss of the love, companionship and affection of the spouse. A cause of action for alienation of affection does not necessarily, though it may, involve a loss of affection through adulterous relations. Although not essential to recovery, adultery between defendant and plaintiff's spouse may be shown in aggravation of damages.

On the other hand, the gist of the action of criminal conversation is adultery between defendant and plaintiff's spouse. The right protected is the exclusive right of one spouse to sexual intercourse with the other.

In support of the foregoing statements of law see Rank v. Kuhn, 236 Iowa 854, 857--858, 20 N.W.2d 72, 74-75; Kiger v. Meehan, 253 Iowa 746, 750, 113 N.W.2d 743, 746; Castner v. Wright, 256 Iowa 638, 643, 127 N.W.2d 583, 586; Allen v. Lindeman, 259 Iowa 1384, 1398, 148 N.W.2d 610, 613; and citations in these opinions.

This is not an election of remedies situation since plaintiff asserted two separate and distinct causes of action. See Allied Concord Financial Corp. v. Hawkeye Lbr. Co., 172 N.W.2d 264, 267--268 (Iowa 1969).

Under the record in light of the foregoing statements of law plaintiff was entitled to have both causes submitted to the jury. See Puth v. Zimbleman, 99 Iowa 641, 68 N.W. 895.

Defendant's argument to the contrary is without merit.

II. Another closely related issue stems from the trial court's overruling defendant's objection that testimony offered through four plaintiff witnesses as to declarations made to them by plaintiff's wife, Carolyn, bearing on her state of mind toward plaintiff was hearsay. In overruling defendant's objections the court on each occasion, at the request of defendant's counsel, admonished the jury it would be instructed with reference to the limited purpose for which the answers to such questions might be considered. In instruction 16 the court told the jury the limited purposes for which they might consider such evidence.

Counsel now contends the court should have orally instructed the jury with respect to the significance and limited purpose for which such evidence was admissible on each occasion and that the failure to do so was error.

In ruling on defendant's objection the trial court expressed the view it would not be orderly proceeding in conducting the trial to require the court to make such admonition at the time each question which called for such testimony under an exception to the hearsay rule in this type of case was propounded.

The statements challenged would not be admissible in the cause for criminal conversation because they are hearsay. In an action for alienation of affections, though not in an action for criminal conversation, declarations of the alienated spouse during the period of alienation may be shown as bearing on that spouse's state of mind and affection toward the plaintiff spouse. See Glatstein v. Grund, 243 Iowa 541, 548, 51 N.W.2d 162, 167, where this court said:

'Of course declarations of one not a party to the action are ordinarily not admissible in evidence. But there are exceptions to the rule. In an action like this, (alienation of affections) though the husband is not a party, his conduct, as well as defendant's, is directly involved. It is well settled that declarations of the...