Kirk v. Koch
| Citation | 607 So.2d 1220 |
| Decision Date | 08 October 1992 |
| Docket Number | No. 89-CA-740,89-CA-740 |
| Parties | Shirley Chamblee KIRK v. Judy B. KOCH. |
| Court | United States State Supreme Court of Mississippi |
Davis Hall Smith, Colorado Springs, Colo., for appellant.
Thomas R. Jones, Bourdeaux & Jones, Meridian and Edward Blackmon, Blackmon Blackmon & Evans, Canton, for appellee.
Before HAWKINS, P.J., and PITTMAN and BANKS, JJ.
BANKS, Justice, for the Court:
In October 1987, Judy Koch (formerly Judy Jeffries) sued Shirley Kirk in the Circuit Court of Madison County for the torts of alienation of affections and criminal conversation. The jury rendered a verdict in favor of Mrs. Kirk on the charge of criminal conversation and in favor of Mrs. Koch on the charge of alienation of affections and awarded $50,000 to Judy Koch. The defendant, Kirk, filed a motion for a new trial, j.n.o.v., and a remittitur, which were I. Whether the evidence in the record is sufficient, prima facie, to establish all of the elements of the tort of alienation of affections.
denied by the Circuit Court of Madison County. Kirk now appeals the decision and presents three issues on appeal:
II. Whether the lower court erred in refusing to allow the Defendant to prove that the real cause of the Plaintiff's marital disharmony was her husband's adultery with a woman, who is not a party to this action.
III. Whether the damages awarded are excessive.
STATEMENT OF THE FACTS
The plaintiff, Judy Koch (Koch), married Jim Jeffries (Jeffries) in August 1984. It was Koch's third marriage and Jeffries' fifth marriage. They each had a child by a previous marriage, but none were born of their marriage. The defendant, Shirley Kirk (Kirk) and her late husband, James Kirk, had known Jeffries for about twenty years. Koch had never heard of Kirk or her husband, until he was killed in a airplane crash in October 1986. Jeffries and Mr. Kirk began talking to each other in January 1985 about starting an aerial film-making business. Jeffries had worked as a television writer and producer. Mr. Kirk decided to wait to start this business because he was constructing a home-built airplane at the time.
Soon after Mr. Kirk's death, Jeffries began telephoning and visiting Kirk and her daughter for the purpose of consoling them. Koch had no knowledge that Jeffries was seeing Kirk. In December 1986, Kirk agreed to finance the aerial film-making business and gave Jeffries a check for $21,700. On Christmas morning in 1986, Koch found a deposit slip for $21,700, representing a deposit made to Jeffries' personal account at a bank in Philadelphia, Mississippi. Jeffries refused to explain the deposit or the source of the money to Koch. The next day Jeffries told Koch that an investor had agreed to finance the business venture but failed to reveal that Kirk was the investor. On December 27, 1986, Jeffries and Kirk executed a written agreement setting out the plans for the venture.
In January 1987, Jeffries took a job in Jackson, Mississippi, with Beltone. Jeffries stayed in Jackson three nights a week and stayed at the Jeffries' home in Meridian four nights a week. In early February, Jeffries began to stay in Meridian only one to two nights a week.
After coming home to Meridian in an unfamiliar gray Mazda pick-up truck one evening, Koch became suspicious. After discovering the truck was registered to the late Mr. Kirk, Koch and her friend went to the Kirk home in Jackson, where they saw both Jeffries' car and the gray Mazda pick-up truck in the driveway. Koch testified that Jeffries' car was still in the Kirk driveway when she left at 11:30 p.m. That same evening, Koch also went to see a motor home that Jeffries claimed to have lived in while in Jackson. Koch testified that the motor home was not hooked up for electricity.
When Koch left the Kirk home around 11:30 p.m., she used a public telephone to call the Kirk home. When a female answered, Koch asked to speak to Jim Jeffries. The female voice said "hold on", the line was held open and then the phone was hung up on the Kirk end.
On April 25, 1987, Koch determined that the investor was Kirk and confronted Jeffries with this information. Koch asked Jeffries to move out and he did. Jeffries testified that he tried to reconcile with Koch but Koch's testimony disputes this. Koch testified that she tried to call him to get him to come back, but he did not return her calls.
In May 1987, Jeffries moved into Kirk's home. He stayed there for approximately six weeks. After Jeffries had moved into the Kirk home, Koch travelled to Jackson and observed Jeffries and Kirk in the driveway of the Kirk home. After she observed this, Koch hired a private investigator to place Jeffries under surveillance. This private investigator and one of his employees observed Jeffries at the Kirk home, but never witnessed any expression or gesture of affection between Kirk and Jeffries.
During Kirk's association with Jeffries, she wrote a number of checks to Jeffries. Kirk testified that some were loans and some were for business. Kirk paid for some of Jeffries' medical bills and also paid for Jeffries' attorney in his divorce from Koch. At trial, the phone bills of both Kirk and Koch were introduced into evidence. These revealed telephone numbers in common on each of the bills which could be identified with Jeffries' children, relatives and friends and places where Jeffries was staying on the road. The calls to or from Kirk's residence dated as early as December 1986 and continued throughout the first half of 1987.
In 1987, Jeffries' daughter, Julie Jeffries, moved from California to Jackson into the Kirk home. Kirk had known Julie since Julie was two years old. At the time of trial, Julie had been living with Kirk for a year, and testified she had never witnessed any expression of affection between Jeffries and Kirk.
Koch obtained a divorce from Jeffries in May 1987 and had her surname restored to Koch. Koch filed suit against Kirk in October 1987 for alienation of affections and criminal conversation.
I. Whether the evidence in the record is sufficient, prima facie, to establish all the elements of the tort of alienation of affections
Kirk argues on appeal that the jury's verdict against Kirk on the charge of alienation of affections is not supported by the evidence. She argues that there was no intent or malice on her part to interfere with the marriage of Jeffries and Koch and also that Jeffries' affections for his wife were never diminished.
The elements of alienation of affections are:
(1) wrongful conduct of the defendant;
(2) loss of affection or consortium; and
(3) causal connection between such conduct and the loss.
41 Am.Jur.2d Husband & Wife Sec. 466, at 394. See also Stanton v. Cox, 162 Miss. 438, 139 So. 458 (1932). The tort of alienation of affections was recently visited by this court in Camp v. Roberts, 462 So.2d 726 (Miss.1985).
The appellant Kirk cites Stanton v. Cox, 162 Miss. 438, 139 So. 458 (1932), one of the first cases in which this Court discussed the tort of alienation of affections. In Stanton, this Court stated: Id. 139 So. at 460 (citations omitted).
Kirk puts great emphasis on the language of "direct interference." She argues that the record is devoid of any evidence of direct and intentional interference in the marriage of Jeffries and Koch. Kirk notes that there is no evidence that she and Jeffries engaged in sexual relations, nor any evidence that Kirk and Jeffries "hugged, kissed, caressed, or embraced ... in an amorous and affectionate manner." Appellee Koch responds by pointing to Kirk's conduct over a period of months. Koch notes that Kirk wrote a number of checks to Koch's husband, gave him free use of a vehicle, allowed him to live in her home for approximately six weeks, financed his divorce from Koch, brought his child by a former marriage into her home to live with her, and paid for medical treatment for him. This conduct, Koch argues, is sufficient to prove there was a direct and intentional interference by Kirk into Koch and Jeffries' marriage.
This Court's scope of review, when called upon to review a verdict returned by a duly empaneled and sworn jury, was stated in City of Jackson v. Locklar, 431 So.2d 475, 478 (Miss.1983):
When the court considers whether the defendant is entitled to a judgment as a matter of law, the court should consider the...
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