Veeder v. Kennedy, 20360

Decision Date24 February 1999
Docket NumberNo. 20360,20360
Citation589 N.W.2d 610,1999 SD 23
PartiesMichael A. VEEDER, Plaintiff and Appellee, v. Myles KENNEDY, Defendant and Appellant.
CourtSouth Dakota Supreme Court

Bruce M. Ford, Watertown, South Dakota and Jonathan K. Van Patten, Vermillion, South Dakota, Attorneys for plaintiff and appellee.

David R. Gienapp of Arneson, Issenhuth & Gienapp, Madison, South Dakota, Attorneys for defendant and appellant.

GILBERTSON, Justice.

¶1 This is an appeal from a jury verdict in an alienation of affections case. Michael Veeder (Michael) brought suit against Myles Kennedy (Kennedy) for alienation of the affections of his former spouse, Julie Veeder (Julie). The jury returned a verdict for Michael granting compensatory and punitive damages totaling $265,000.00. Kennedy appeals. We affirm as to all issues.

FACTS AND PROCEDURE

¶2 Kennedy was a management employee of Norwest Bank (Norwest) from 1969 to 1995. In February 1989, Kennedy came to Watertown, South Dakota to head operations at the Watertown branch of Norwest. There he met Julie, who was also employed by Norwest as a personal banker. In 1990, the position of Consumer Banking Manager opened. Since Kennedy did not know the applicants, he relied on the recommendations of other Norwest employees. They recommended Julie for the position. Julie was offered the job by Kennedy and she accepted it.

¶3 Her new position required that Kennedy and she work closely together. Over three years they became close friends. In 1993, Julie and Kennedy became involved in a sexual relationship. The affair continued until May 1995. At the time both parties were married. 1 Both Kennedy and Julie expressed their love for each other during this relationship.

¶4 Julie and Michael were married in 1975. They had three children. Julie testified that her disenchantment with the marriage started when the children were getting older and Michael was not involved with the family. She was raising the children and working full-time. Michael would spend weekend nights during the summer going to various automobile races, he was not involved in the religious upbringing of the children, he did not communicate with Julie and was always concerned about money. He also spent all of his week nights working at the family car wash. As a result Julie's feelings for her husband began to erode.

¶5 Michael testified that he did not realize there were problems in his marriage. Julie never gave any impression she was unhappy. He claimed the letters that Julie wrote to him after they separated showed she had not lost her affections for him before the affair with Kennedy. Michael contends that any problems in the Veeder marriage surfaced only after Kennedy began having an inappropriate relationship with Julie. She withdrew from Michael and was no longer herself. Michael claims that Julie was vulnerable to a predator such as Kennedy.

¶6 Michael brought suit for alienation of affections against Kennedy and Norwest. Before trial, Kennedy filed a motion for summary judgment. A motion to dismiss or in the alternative a motion for summary judgment was also filed by Norwest. After a hearing the trial court denied Kennedy's motion for summary judgment and granted Norwest's motion for summary judgment. After a trial, the jury returned a verdict of $265,000.00 against Kennedy. This figure is composed of $65,000.00 actual damages and $200,000.00 punitive damages. Kennedy filed a motion for a new trial. The motion was denied by the trial court.

¶7 Kennedy appeals, raising the following issues:

1. Whether public policy requires that South Dakota reexamine and abolish the tort of alienation of affections.

2. Whether the trial court erred in denying Kennedy's motion for a directed verdict.

3. Whether the trial court erred in denying Kennedy's motion for summary judgment.

4. Whether the trial court erred in denying Kennedy's proposed instruction on the elements of the cause of action and in giving instruction number 13.

5. Whether the trial court erred in allowing the introduction of certain prior acts evidence.

6. Whether the trial court erred in denying Kennedy's motion for a new trial.

ANALYSIS AND DECISION

¶8 1. Whether public policy requires that South Dakota reexamine and abolish the tort of alienation of affections.

¶9 This question presents a question of law. As such, it will be reviewed de novo. Webb v. Union Ins. Co., 1996 SD 141, p 8, 556 N.W.2d 669, 670.

¶10 a. History of the tort alienation of affections.

¶11 As the cause of action for alienation of affections is central to all other issues in this case, we begin our analysis with a discussion of this tort. This action is an off-shoot of the common law tort for depriving a master of his quasi-proprietary interest in his servant. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 124, at 916 (5th ed 1984). Since under common law women and children were considered property of the husband or father, this tort was extended to include their services. Id. The action eventually shifted away from compensation for services to compensation for loss of affection and companionship or perhaps the better known term of consortium. Id. The tort was based on the premise that the wife's body belonged to the husband and anyone who trespassed upon the husband's property by seducing his wife was liable for damages. 2 Russo v. Sutton, 310 S.C. 200, 422 S.E.2d 750, 752 (1992). Haney v. Townsend, 12 SCL (1 McCord) 206 (1821). Conversely, at common law until recently the wife had no such remedy against anyone who interfered in her relationship with her husband. Prosser and Keeton on the Law of Torts § 124, at 916. See SDCL 25-2-15 (enacted 1887). See also Holmstrom v. Wall, 64 S.D. 467, 268 N.W. 423 (1936) (wife has a cause of action against anyone wrongfully interfering with her marital relationship).

¶12 Currently, thirty-four states, including the District of Columbia, have statutorily abolished the tort of alienation of affections. 3 However, only five states have done so judicially which is the course of action now advocated by Kennedy. Of the five, four abolished it as a common law doctrine and only one abolished the cause of action which was based upon a statute. 4 One state has statutorily denied money damages for the cause of action. 5 Louisiana has never accepted alienation of affections as a cause of action. See Moulin v. Monteleone, 165 La. 169, 115 So. 447 (1927), accord, Ohlhausen v. Brown, 372 So.2d 787 (La.Ct.App.1979). Alaska does not have a statute or case law addressing the cause of action. Alienation of affections remains a legitimate cause of action in nine states. 6¶13 b. Alienation of affections in South Dakota.

¶14 South Dakota derives this cause of action from SDCL 20-9-7 7 which states:

The rights of personal relation forbid:

* * *

(2) The abduction or enticement of a wife from her husband ...;

(3) The seduction of a wife, daughter, or orphan sister.

The elements of alienation of affections in South Dakota are as follows:

1. wrongful conduct of the defendant;

2. loss of affection or consortium; and

3. a causal connection between such conduct and loss.

Pickering v. Pickering, 434 N.W.2d 758, 762-3 (S.D.1989) (citing Pankratz v. Miller, 401 N.W.2d 543, 546 (S.D. 1987); Hunt, 309 N.W.2d at 820.)

¶15 The last time this Court addressed the issue of alienation of affections was in Pickering. 8 Over the years we have considered this issue a number of times. See Pankratz; Hunt; Morey v. Keller, 77 S.D. 49, 85 N.W.2d 57 (1957); Pearsall v. Colgan, 76 S.D. 241, 76 N.W.2d 620 (1956); Monen v. Monen, 64 S.D. 581, 269 N.W. 85 (1936); Holmstrom; Moberg v. Scott, 38 S.D. 422, 161 N.W. 998 (1917). The most extensive discussion of the possible abrogation of the tort of alienation of affections is found in Hunt, 309 N.W.2d 818.

¶16 In Hunt, a plurality decision, the plaintiff Bonnie Hunt (Bonnie) brought suit against Kay Hunt (Kay) for alienation of affections and criminal conversation. Id. at 819. Bonnie prevailed on both counts with a jury verdict of $50,000.00. Id. at 819. On appeal, Kay requested the torts of alienation of affections and criminal conversation be judicially abolished. Id.

¶17 The Hunt Court traced the history of both causes of action. 9 The Court, found, "[t]he right to recover under the doctrines of alienation of affections and criminal conversation is of common-law origin, and exists independent of any statute." Id. at 820, (citing Holmstrom, 64 S.D. 467, 268 N.W. 423; Moberg, 38 S.D. 422, 161 N.W. 998). The Court considered the national trend of abolishing both criminal conversation and alienation of affections. Justices Henderson and Wollman contended both torts had outlived their usefulness and were "archaic holdovers from an era when wives were considered the chattel of their spouse...." Hunt, 309 N.W.2d at 821. (Footnote omitted). The two Justices voted to abolish both causes of action and reverse the judgment of the trial court.

¶18 Justice Dunn wrote a concurring opinion in Hunt, in which Justices Morgan and Fosheim joined. These Justices agreed with Justice Henderson's opinion that the cause of action of criminal conversation should be abrogated. Id. at 822-3. The abrogation was necessary in part because the cause of action did not provide any meaningful defenses. Id. at 823. However, the three concurring Justices refused to abrogate the cause of action for alienation of affections reasoning that the cause of action had long been recognized by the South Dakota Legislature and therefore should be upheld until repealed by the legislature. Id.

¶19 c. Does public policy require the abolition of the tort

alienation of affections.

¶20 Kennedy argues that almost all jurisdictions have eliminated this cause of action 10 10 and therefore South Dakota should follow the majority of other jurisdictions. Michael's response is that we should follow Hunt and preserve the tort until...

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