Hanson v. Valdivia, 300

• Citation: 51 Wis.2d 466,187 N.W.2d 151
• Decision Date: 02 June 1971
• Docket Number: No. 300,300
• Parties: John D. HANSON, Spec. Admr. of the Estate of Leon E. Shada, Appellant, v. Dr. Enrique VALDIVIA, Respondent.
• Court: United States State Supreme Court of Wisconsin

Page 151

187 N.W.2d 151

51 Wis.2d 466

John D. HANSON, Spec. Admr. of the Estate of Leon E. Shada, Appellant, v. Dr. Enrique VALDIVIA, Respondent.

No. 300.

Supreme Court of Wisconsin.

June 2, 1971.

The order appealed from sustained a demurrer to plaintiff's amended complaint and dismissed the complaint.

On February 10, 1970, the plaintiff, as special administrator of the estate of Leon E. Shada, commenced this action against the defendant, Dr. Enrique Valdivia. Plaintiff alleged in substance that the defendant had engaged in criminal conversation with Leon Shada's wife, June A. Shada, and had alienated the affections June A. Shada had for Leon Shada, and that as a result of defendant's acts Leon Shada became so upset that he committed suicide. The complaint affirmatively alleged that Leon Shada's death occurred before the action was begun. The action was brought to recover both compensatory and punitive damages allegedly caused by defendant's conduct.

The defendant filed a demurrer to the original complaint on the grounds that it did not state facts sufficient to constitute a cause of action. On March 26, 1970, the trial court sustained defendant's demurrer. The court stated that if the complaint alleged a cause of action for alienation of affections of for criminal conversation such causes of action would not survive Leon Shada's death since the complaint did not allege any violation of his property rights. It further stated that if the complaint alleged a cause of action for wrongful death such cause of action would be barred because it was alleged that Shada's wife was a participant with the defendant in the wrongful acts which caused Shada's death, and she would benefit from her own wrong as sole beneficiary under the wrongful death statute.

The plaintiff filed an amended complaint which realleged all of the facts contained in the original complaint, and further alleged that the decedent was survived by three children who, upon information and belief, had suffered at the loss of their father as a result of defendant's wrongful actions. The prayer for relief again sought compensatory and punitive damages, and asked that any damages eventually payable to the surviving spouse, June A. Shada, be impressed with a constructive trust for the benefit of decedent's children.

The defendant again demurred to the amended complaint on the grounds that it did not state facts sufficient to constitute a cause of action, and on the additional grounds that the plaintiff did not have the legal capacity to use and that there was a defect of parties.

On May 15, 1970, the trial court sustained defendant's demurrer to the amended complaint for the same reasons it stated in its prior decision. The plaintiff appeals.

Oldenburg & Lent, Madison, for appellant.

D'Amato & Cusack, Waukesha, for respondent.

BEILFUSS, Justice.

Two issues are presented on this appeal:

(1) Does a cause of action for criminal conversation or alienation of affections survive the death of the wronged party when the complaint alleges no damage to the property rights or interests of the deceased?

(2) May the special administrator of the decedent's estate maintain an action for wrongful death when there is a surviving spouse who has participated in the wrongful conduct which allegedly caused the wrongful death?

Howard v. Lunaburg (1927), 192 Wis. 507, 213 N.W. 301, sets forth the rule that actions for criminal conversation or alienation of affections do not survive the death of one of the parties unless the complaint includes allegations showing financial damage to the plaintiff which would pecuniarily diminish his estate. In that case the plaintiff was the wife of John F. Howard whose love and affection was allegedly alienated from her by one Elenore B. Phillipp. Elenore B. Phillipp was the original defendant, but she died while the case was pending and the trial court ordered that the executrix of her estate, Emma Lunaburg, continue in her place. On appeal this court reversed that order and directed that the complaint against the executrix be dismissed upon the merits.

In the Howard decision the court initially noted that such an action, being purely a tort action, would not have survived at common law. It then went on to inquire whether the survival statute, sec 331.01, Stats. (now sec. 895.01), removed this type of action from the common law rule. Insofar as applicable, that section read, as it does now:

'In addition to the actions which survive at common law the following shall also survive: Actions * * * for assault and battery, false imprisonment or other damage to the person, for all damage done to the property rights or interests of another, * * *.'

In commenting upon this statute the court stated, at p. 510, 213 N.W. p. 303:

'It is so evident that it needs no argument to show (1) that our survival statutes have made an addition to the actions that survived at common law, but (2) that it was never the legislative intent that all actions should survive. If that had been the intent, it could have been expressed by saying 'all actions shall survive' or equivalent language. The Legislature has not said that. Hence, if we give the statute a construction that will result in the survival of all actions, we have misconstrued it. It is well to bear this in mind, and to make it clear, for, as we construe the arguments of counsel for plaintiff, they seem to lead to the result that all actions survive.'

In rejecting the argument that this type of action is one for damage to property rights or interests the court said, at p. 511, 213 N.W. page 303:

'* * * Damage to feelings, or loss of consortium, does not constitute a property right or interest within the meaning of the statute, for, if it did, all actions would survive, and that was not the legislative intent. If actions for damage to property rights, for damage to the person, physically, and for damage to feelings survived, then all actions would survive, for all actions must be included in the above classes or combinations thereof. By property rights or interests was undoubtedly meant, a right or interest of value, that could be parted with for some pecuniary consideration, or, if lost or impaired, would pecuniarily diminish the estate of plaintiff.'

The court then went on to consider whether this type of action is one for 'other damage to the person,' and in holding that it was not, said at pp. 512, 513, 213 N.W. p. 304:

'* * * It is true that cases may be found where the words 'injuries to the person,' 'personal injury,' and the like have been in certain contexts held to be broad enough to include acts that do not involve physical contact with the injured person, as in Bennett v. Bennett, 116 N.Y. 584, 23 N.E. 17; in Holmes v. Holmes, 133 Ind. 386, 32 N.W. 932; and in Madden's Case, 222 Mass. 487, 489, 111 N.E. 379, and (in a dictum) to include alienation of affections. Hurle's Case, 217 Mass. 223, 104 N.E. 336. But Massachusetts has consistently held that in the survival statute the words 'damage to the person' import physical damage and do not include the alienation of affections. Dixon v. Amerman, 181 Mass. 430, 63 N.E. 1057, and cases cited. It was said in the Dixon Case, speaking of the statutory words 'or other damage to the person:' 'It would seem that nothing could make it plainer than the words themselves do that this case (alienation of affection) does not come within them.' See, also, note to Gross v. Ledford, 190 Ky. 526, 228 S.W. 24, 14 A.L.R. 689, 693, where it is stated that 'the proposition laid down in the reported case, * * * that an action or cause of action for alienation of affections or criminal conversation does not survive the death of either party, it is supported by the weight of authority,' citing a number of cases.

'* * * As before pointed out, if damage to the person includes damage to feelings, then all actions survive, and that cannot be the proper statutory construction.' ¹

The appellant asks the court to either distinguish the Howard Case from the instant one on its facts or to overrule it. The foundation of his argument appears to be that the decision in Howard was based solely upon considerations of financial interest, namely, that in 1927 the husband was thought to be entitled to the services of his wife and a loss of them would result in damage to his property rights, but that a wife was not entitled to the services of her husband, and if she lost them she had parted with nothing of financial value. From this point he argues that since a wife now has the same right of action as her husband to recover damages for criminal conversation, ² this 'financial interest' theory is no longer valid and such actions should survive the death of either party.

Although there is some language of Howard ³ which supports the premises upon which the appellant's argument is based, we do not arrive at his conclusion. While it is true that the right of a husband to the services of his wife has been denominated as property right, the use of that label must be...