Saunders v. Alford, 89-CA-185

• Decision Date: 08 October 1992
• Docket Number: No. 89-CA-185,89-CA-185
• Citation: 607 So.2d 1214
• Parties: Charles David SAUNDERS v. Jeffy R. ALFORD.
• Court: Mississippi Supreme Court

Page 1214

607 So.2d 1214

Charles David SAUNDERS v. Jeffy R. ALFORD.

No. 89-CA-185.

Supreme Court of Mississippi.

Oct. 8, 1992.

James H. Mathis, Mathis & Hill, Corinth, for appellant.

Charles M. Merkel, Jr., John H. Cocke, Merkel & Cocke, Clarksdale, for appellee.

En Banc.

BANKS, Justice, for the Court:

We are called upon to abolish the cause of action for criminal conversation. Finding that this cause of action has outlived its usefulness, we declare its demise and reverse and render the judgment entered against the appellant, Charles Saunders in favor of appellee and cross appellant, Jeffy Alford.

I.

Jeffy and Patricia Alford were married on February 17, 1956. Jeffy farmed for a living while Patricia worked at the Billups Petroleum Company in Leflore County. In December of 1960, Patricia Alford met the vice-president of Billups, Charles Saunders. Saunders was approximately forty years old and wealthy. Alford, according to her own testimony, was twenty-four years old and unhappy. The couple became involved in a sexual relationship, meeting on their lunch breaks and on Saturdays at Saunders' vacant townhouse. Though both were married, Saunders and Alford continued their relationship for more than two decades. During this time, Saunders lavished Patricia with gifts and promises of marriage. He requested that Patricia quit her job. Saunders became very attached to Alford's three daughters requesting that the girls call him Daddy-O.

In February of 1980, Patricia Alford sought a divorce from her husband, Jeffy, alleging that he was an habitual drunk. Ms. Alford testified that Charles Saunders was instrumental in her decision to institute this action. In May of that year, Jeffy and Patricia filed an Amended Bill of Complaint for Divorce seeking to terminate the marriage on grounds of irreconcilable differences. The Alfords were divorced on those grounds on July 31, 1980.

Jeffy Alford instituted this action in the Circuit Court of Leflore County against Charles Saunders, alleging the torts of alienation of affection and criminal conversation. He asserted that Saunders had maintained an illicit affair with his wife for more than twenty-three years. The Complaint sought actual damages of $5,000,000.00 and punitive damages in the same amount.

On June 9, 1988, the case was tried. The jury found for Charles Saunders on the issue of alienation of affection but, on the claim of criminal conversation, found for Jeffy Alford awarding him $7,500.00 in actual damages and $20,000.00 in punitive damages.

This appeal and cross appeal followed, wherein Saunders challenges the underlying causes of action and Alford challenges the trial court's order limiting damages for criminal conversation to the acts occurring within six years of the filing of the suit. Because we dispose of this matter in deciding the former issue, we do not reach the cross appeal.

II.

The torts of alienation of affection and criminal conversation, also known as "heart balm" actions, originated on the common-law belief that wives were the chattel of their spouse. The purpose of a cause of action for alienation of affection is the "protection of the love, society, companionship, and comfort that form the foundation of a marriage...." Norton v. MacFarlane, 818 P.2d 8, 12 (Utah 1991). See also W. Keeton, Prosser & Keeton on Torts, Sec. 124, at 918 (5th ed.1984). The right sought to be protected is that of consortium. Note, Criminal Conversation: Civil Action for Adultery, 25 Baylor L.Rev. 495 (1973). It consists in depriving one of the affections of the other. Prosser & Keeton on Torts, at 918.

The elements of a cause of action have been recognized by some courts as: (1) wrongful conduct of the defendant; (2) loss of affection or consortium; and (3) causal connection between such conduct and loss. See Bearbower v. Merry, 266 N.W.2d 128 (Iowa 1978); Giltner v. Stark, 219 N.W.2d 700 (Iowa 1974); Hunt v. Hunt, 309 N.W.2d 818 (S.D.1981). The claim for this tort accrues when "the alienation or loss of affection is finally accomplished." Overstreet v. Merlos, 570 So.2d 1196 (Miss.1990) (citing Dorbrient v. Ciskowski, 54 Wis.2d 419, 195 N.W.2d 449 (1972)). A cause of action for alienation of affection does not require that the defendant committed adultery with the plaintiff's spouse. Camp v. Roberts, 462 So.2d 726 (Miss.1985).

Twenty states and the District of Columbia have abolished the tort by legislative initiative. ¹ Three states have abolished the tort by judicial decree. ² By statute, six jurisdictions have limited the cause of action to permit injunctive relief only and have disallowed the award of monetary damages. ³ The courts of Louisiana have never recognized alienation actions. Moulin v. Monteleone, 165 La. 169, 115 So. 447 (1927). We have recently recognized the continued viability of the tort of alienation of affection. Overstreet v. Merlos, 570 So.2d 1196 (Miss.1990). See also Camp v. Roberts, 462 So.2d 726 (Miss.1985).

The tort of criminal conversation, on the other hand, is no more or less than an act of adultery between the defendant and the plaintiff's spouse. "The right protected is the exclusive right of one spouse to sexual intercourse with the other." Bearbower v. Merry, 266 N.W.2d 128, 134 (Iowa 1978). At common law, the "husband was regarded as having a property right in the body of his wife and an exclusive right to the personal enjoyment of her. The wife's adultery was therefore considered to be an invasion of the husband's property rights." Kline v. Ansell, 287 Md. 585, 414 A.2d 929, 930 (1980). As noted by one court, "criminal conversation comes closest in form to a strict liability tort." Fadgen v. Lenkner, 469 Pa. 272, 365 A.2d 147, 149 (1976). The cause of action is made out upon the plaintiff's proof that, while married to the plaintiff, the plaintiff's spouse and the defendant engaged in at least one single act of sexual intercourse. Id. The only defenses to these actions appear to be the consent of the plaintiff and the statute of limitations.

III.

Twenty-four states and the District of Columbia have abolished the tort of criminal conversation by legislative enactment. ⁴ Eight states have abolished the tort by judicial decree. ⁵

Several arguments have been advanced for the abolition of it. These include: (1) a woman is no longer the property of her husband; (2) the tort has no deterrent effect; (3) a cause of action may be brought for vindictive purposes; (4) the potential for abuse is great; (5) the tort is devoid of any defenses; and (6) determining damages is difficult. Some of these arguments have been accepted by the courts which abolished criminal conversation by judicial decree.

The most recent court to judicially abolish the tort of criminal conversation is the Utah Supreme Court. In Norton v. MacFarlane, 818 P.2d 8 (Utah 1991), the court found the tort had no useful purpose. The court reasoned that the "tort is not designed to indemnify the aggrieved spouse for any loss to the marriage relationship. Indeed, a damage award may well be a complete windfall to the plaintiff." Id. at 16. The court noted that a cause of action for criminal conversation may be brought because of greed and vindictiveness. The court also found that this cause of action has little relationship to restoration or preservation of the marriage. The Utah court also stated that

the tort may impose large punitive damages on one of two parties to a mutual act, even though the one held liable under the law was not the aggressor and was less culpable. Whether the offending spouse is the initiator, or intercourse occurs because of the mutual desire of both parties, or the offending spouse is wholly passive, the offending spouse always acts consensually. Thus, despite the inevitable contributing fault of the offending spouse, the tort imposes total liability for the act of two people on only one of them.

Id. at 16.

The court also found that the tort of criminal conversation is unnecessary as long as a cause of action for alienation of affection is available. "To the extent that the tort of criminal conversation provides a cause of action for adultery when the marriage commitment is dead, it serves no useful purpose in awarding damages. If the marriage commitment of the spouses is not dead, the tort of alienation of affections provides an adequate legal remedy." Id. at 17.

In abolishing the tort of criminal conversation, the South Dakota Supreme Court held that heart balm torts are "outmoded archaic holdovers" and "overriding considerations of reality must supersede the perpetuation of alienation or criminal conversation actions." Hunt v. Hunt, 309 N.W.2d 818, 821-22 (S.D.1981). The court abolished the tort of criminal conversation, but left abolishment of alienation of affections to the state legislature.

The court was concerned that there were no defenses to the tort of criminal conversation.

Consent of the wife is no defense. The fact that the wrongdoer did not know the wife was married but believed her to be single is not a defense. The fact that the wife represented herself as single is not a defense. The fact that the wife was the aggressor is not a defense. The fact that she has been neglected or mistreated by her husband is not a defense. The fact that she and her husband were separated through his fault is no defense.

Id. at 821 (quoting Felsenthal v. McMillan, 493 S.W.2d 729, 731 (Tex.1973) (Steakley, J., dissenting)). The Hunt court also found the threat of abuse in this type of action to be great. The "potential for abuse ... is clear since 'the threat of exposure, publicity, and notoriety is more than sufficient to breed corruption, fraud and, misdealings on the part of unscrupulous persons in bringing unjustified and maliicous [sic] suits.' " Id. at 822 (quoting Note, Criminal Conversation: Civil Action for Adultery, 25 Baylor L.Rev. 495, 499 (1973)).

In Kline v. Ansell, 287 Md. 585, 414 A.2d 929 (1980), the Court of...