Morey v. Keller, 9630

• Decision Date: 28 September 1957
• Docket Number: No. 9630,9630
• Citation: 85 N.W.2d 57,77 S.D. 49
• Parties: Gilbert T. MOREY, Plaintiff and Respondent, v. George KELLER, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 57

85 N.W.2d 57

77 S.D. 49

Gilbert T. MOREY, Plaintiff and Respondent, v. George KELLER, Defendant and Appellant.

No. 9630.

Supreme Court of South Dakota.

Sept. 28, 1957.

Cope & Cope, Yankton, for defendant and appellant.

Doyle & Doyle, Yankton, for plaintiff and respondent.

ROBERTS, Judge.

Gilbert Morey brought this action against George Keller to recover damages for the alienation of the affections of his wife.

The complaint alleges, in effect, that while plaintiff and his wife, Irene, were living happily together as husband and wife, the defendant, with knowledge of such marital relationship, on a number of occasions while plaintiff was employed by defendant as a truck driver and during the absence of the plaintiff on long trips without the state sought the companionship of plaintiff's wife and induced her by words of endearment, use of liquor and other means to submit to his advances; that as a result of such wrongful conduct in the part of the defendant the affections of plaintiff's wife for him were alienated; and that plaintiff has been deprived of the society and consortium of his wife. It is further alleged that defendant has large financial means and assuring plaintiff's wife that she would be well provided for sought to induce her to divorce the plaintiff. The defendant answered by general denial. The jury returned a verdict for $5,000 compensatory, and $1,750 exemplary, damages. Defendant appeals.

The principal ground urged for reversal is that the evidence did not justify submission of the case to the jury and that there was error in refusal of motion for directed verdict and in denying defendant's motion for new trial. In his challenge to the sufficiency of the evidence, defendant contends that there is no evidence that there was in fact a loss or diminution of the affections of the wife for the plaintiff or that the conduct of the defendant was the controlling cause of any enticement or alienation.

The essential elements of a cause of action for alienation of affections are: (1) wrongful conduct of the defendant; (2) loss of affection or consortium; and (3) a causal connection between such conduct and loss. Pearsall v. Colgan, S.D., 76 N.W.2d 620. In Monen v. Monen, 64 S.D. 581, 269 N.W. 85, 87, 108 A.L.R. 404, it is said that the 'gist of the action is malicious interference with the marriage relationship.' In Holmstrom v. Wall, 64 S.D. 467, 268 N.W. 423, we said that the loss of consortium is the actionable consequence of an action for alienation of affections.

Consortium is a right growing out of the marital relationship. This term includes the right of either spouse to the society, companionship, conjugal affections and assistance of the other. Roberts v. Jacobs, 37 S.D. 27, 156 N.W. 589; Holmstrom v. Wall, supra. A loss or impairment of any such elements will sustain an action for alienation of affections.

Abandonment of the plaintiff by his or her spouse is not essential to recovery. As said in Foot v. Card, 58 Conn. 1, 18 A. 1027, 1029, 6 L.R.A. 829, 'It is not a prerequisite to the right of the plaintiff to maintain this suit in her own name that she should have been abandoned by her husband in the literal sense, nor that she should have actually separated herself from him by or without a decree of divorce. If she has suffered the wrong complained of, her right to redress is absolute. It cannot be made to depend upon any of these conditions. As long as she keeps her marriage contract, so long she has the right to the conjugal society and affection of her husband. Possibly, she may regain these. This possibility is her valuable right. The defendant may not demand that she shall sacrifice it for the future, as the price of redress for injuries in the past. Upon the pleadings, there is a valuable right in the wife solely, and an injury thereto, for which damages must be given to her solely, notwithstanding the fact that she is living with her husband; therefore the law cannot refuse its assistance. The rules of law which the defendant invokes for her protection are not applicable to the case.'

See also Tice v. Mandel, N.D., 76 N.W.2d 124; Burke v. Johnson, 274 Ky. 405, 118 S.W.2d 731; Farrow v. Roderique, Mo.App., 224 S.W.2d 630; Hosford v. Hosford, 58 Ga.App. 188, 198 S.E. 289; Annotations in L.R.A.1916E, 1091, and 19 A.L.R.2d 471.

It is contended that the following language in Pearsall v. Colgan, supra indicates a contrary holding: 'To justify a recovery by plaintiff in this action the evidence must be sufficient to show that the wife was induced to abandon the husband by some active and direct interference on the part of defendant'. The court was not considering whether abandonment was essential to the right of recovery. Evidence introduced in behalf of the plaintiff showed an abandonment by the wife of her husband, and it was conceded that the husband had lost the affections of his wife. It was pointed out that this was not sufficient to entitle the husband to recover, but it must be further established that defendant was the one who brought about the separation. Under the pleadings and the evidence the question whether or not wrongful deprivation of consortium might in some instances be...