Hanover v. Ruch

Decision Date15 April 1991
Docket NumberNo. 7,7
Citation809 S.W.2d 893
PartiesJerome Howard HANOVER, Plaintiff/Appellee, v. Robert M. RUCH, M.D., Defendant/Appellant. 809 S.W.2d 893
CourtTennessee Supreme Court

Hal Gerber, Deborah Godwin, Memphis, for defendant/appellant.

Al H. Thomas, Memphis, for plaintiff/appellee.

OPINION

ANDERSON, Justice.

We are asked to decide whether the common-law tort of criminal conversation should be abolished in Tennessee. The trial court jury found that the defendant had committed the tort of criminal conversation, and awarded the plaintiff compensatory and punitive damages.

The relevant facts are undisputed. The defendant, Robert M. Ruch, M.D., is a gynecologist. The plaintiff is Jerome Hanover, whose wife, Sandra Hanover, was Dr. Ruch's patient. The sexual affair between Dr. Ruch and Sandra Hanover began in late October of 1983, and continued for two years, until November of 1985. Because of the affair and Dr. Ruch's conduct, Jerome Hanover filed a divorce action against Sandra Hanover to end their 31-year marriage, and a civil complaint against Dr. Ruch, alleging three causes of action: criminal conversation, alienation of affections, and medical malpractice.

At trial, the jury returned verdicts for the defendant on the alienation of affection and medical malpractice counts, but found for the plaintiff on the claim of criminal conversation, and assessed compensatory damages of $25,000 and punitive damages of $100,000. The trial court approved the verdicts. The defendant appealed.

The Court of Appeals recommended the abolishment of the tort of criminal conversation, but recognized it had no power to act, and therefore affirmed the trial court. We granted the defendant's application to determine whether or not we should abolish the common-law tort of criminal conversation. We have decided that we should do so because the action is founded upon a property-based theory which has no place in contemporary society, because the social harm it causes far outweighs any justification for its existence, and because the Legislature has declared the action to be against public policy.

HISTORY

Punishment for adultery 1 began at the time of the ancient Teutons, and varied widely among the different tribes.

The husband, in most instances, was permitted to kill the lover if he found him in the act. Later, however, there are signs that the outraged husband who found his wife in the act of adultery might no longer slay the guilty pair, or either of them, but might emasculate the adulterer. Most tribes fixed a penalty which the lover had to pay the husband, and among the Anglo-Saxons the amount depended upon the station in life of the husband.

Lippman, The Breakdown of Consortium, 30 Colum.L.Rev. 651, 654-55 (1930).

Much later, the Anglo-Saxons, as a part of the development of the early English common law, established the actions of criminal conversation and alienation of affection. These early common-law tort actions originated from actions against third parties by the master for the enticement away of his servants, thereby depriving him of their services. Since the station of a wife under early common law was that of a valuable superior servant of the husband, an action was available to include the loss of her services by enticement. The rationale being that she was his property, just as the servant was his property. Historically, the two actions were somewhat different. The first, enticement (also called abduction), involved assisting or inducing a wife to leave her husband by means of fraud, violence, or persuasion. The injury was considered to be the loss of the wife's services and consortium. Enticement, or abduction, has evolved into what is commonly known today as the tort of alienation of affections. The second tort remedy available to an injured spouse at early common law was seduction, which today is commonly known as the tort of criminal conversation. Unlike enticement or abduction, seduction required an adulterous relationship between the plaintiff's spouse and the defendant, and no physical separation of the husband and wife was required. The purpose underlying an action for seduction was to vindicate the husband's property rights in his wife's person and to punish the defendant for defiling the plaintiff's marriage, family honor, and for placing the legitimacy of children in doubt. Comment, Stealing Love in Tennessee: The Thief Goes Free, 56 Tenn.L.Rev. 629 (1989); W. Prosser, The Law of Torts, Sec. 124 at 873-75 (4th ed. 1971).

Since the action for criminal conversation is civil, rather than criminal, a legal fiction developed that damages for criminal conversation are compensatory rather than punitive. In Weedon v. Timbrell, 5 T.R. 357 (1793), Lord Kenyon held that where a husband lived apart from his wife, he could not maintain a criminal conversation action since the action was not punitive in nature, but compensatory, and since no loss of the wife's services was shown.

In 1818 Lord Byron described the English judicial process of evaluating "what a wife is worth":

[H]owsoever people fast and pray,

The flesh is frail, and so the soul undone:

What men call gallantry, and gods adultery,

Is much more common where the climate's sultry.

Happy the nations of the moral North! Where all is virtue, and the winter season

Sends sin, without a rag on, shivering forth

('Twas snow that brought St. Anthony to reason);

Where juries cast up what a wife is worth,

By laying whate'er sum, in mulct, they please on

The lover, who must pay a handsome price,

Because it is a marketable vice.

Byron, Don Juan, Canto I, LXIII-IV.

In Seventeenth Century England, the criminal conversation action became extremely important, for it was necessary as a condition precedent to the procuring of a divorce through a private act of Parliament. With the establishment of a divorce court having the right to grant a decree of divorce for the adultery of the wife, the action for criminal conversation was no longer needed, and was abolished by statute in England in 1857. 21 Vic. C. 85, Sec. 59 (1857).

The tort of criminal conversation was first recognized in Tennessee by the Court of Appeals in Stepp v. Black, 14 Tenn.App. 153 (1931), cert. denied March 5, 1932. A prima facie case merely requires proof of a valid marriage between the spouses and sexual intercourse between defendant and plaintiff's spouse during coverture. Rheudasil v. Clower, 197 Tenn. 27, 270 S.W.2d 345 (1953); Darnell v. McNichols, 22 Tenn.App. 287, 122 S.W.2d 808 (1938). Alienation of the spouse's affections is not a necessary element but is regarded as a matter of aggravation. Darnell, supra. Consent of the participating spouse is not a defense. It is of no importance that the participating spouse was the aggressor or procures the defendant to have intercourse with her. Stepp v. Black, 14 Tenn.App. 153 (1931). The only defense to the action is connivance of the plaintiff. Both knowledge and acquiescence must be shown to establish consent or connivance. Otherwise, recovery is assured upon proof of the marriage between plaintiff and his spouse and an act of adultery occurring between the defendant and plaintiff's spouse during the marriage.

Suits for criminal conversation, like suits for alienation of affections, could only be brought by the husband at early common law. The husband was allowed to sue for criminal conversation in order to vindicate his property right in his wife's person and to punish the defendant for placing the legitimacy of his children in doubt. Due to the wife's disability of coverture, she had no right to bring an action for criminal conversation. This disability was removed by statute in Tennessee and accordingly, a wife can now sue for criminal conversation. Comment, Stealing Love in Tennessee: The Thief Goes Free, supra.

SEPARATION OF LEGISLATIVE AND JUDICIAL POWERS

The common-law tort of criminal conversation was abolished by the General Assembly of Tennessee as of January 1, 1991:

SECTION 1. On or after the effective date of this act, no cause of action shall be maintained that is based upon the common law torts of seduction or criminal conversation and such torts are hereby abolished. Nothing in this section shall be construed as prohibiting a cause of action based upon a sexual offense which offenses shall include, but not be limited to, those set out in Tennessee Code Annotated, Title 39, Chapter 13, Part 5.

SECTION 2. Tennessee Code Annotated, Section 28-3-104(a), is amended by deleting the words and punctuation "criminal conversation, seduction".

SECTION 3. Tennessee Code Annotated, Section 20-1-106, is repealed in its entirety.

SECTION 4. This act shall take effect on January 1, 1991, the public welfare requiring it, provided any action filed prior to such date may be maintained under the law in effect on the date of such filing.

Chapter 1056, Public Acts of Tennessee 1990 (emphasis added).

By the enactment of this statute, the General Assembly has declared that criminal conversation actions are offensive to the public policy of the state. The plaintiff argues, however, that Section 4 of the statute deprives this Court of the power to abolish criminal conversation actions filed prior to the effective date of the statute. We find the plaintiff's argument unpersuasive for several reasons.

First, the General Assembly is without authority to enact a retrospective law, affecting vested substantive rights. Tenn. Const. art. I, Sec. 20. 2 Where a statute alters the common law and results in deprivation of a valuable common-law right, such statute cannot constitutionally be applied retroactively. See Massey v. Sullivan County, 225 Tenn. 132, 464 S.W.2d 548 (1971). 3 It follows that a statute which expressly applied to previously-accrued common-law causes of action and purported to deprive the Court of its power to modify the common law, would be unconstitutional. We decline to adopt plaintiff's interpretation that ...

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