Opinion
No. 41573.
Filed July 26, 1978.
1. Criminal Conversation: Damages. In the absence of evidence of some special element of damage for which the law provides a specific means of measurement, it is the general rule that in an action for criminal conversation damages are incapable of precise measurement and there is no fixed rule for determining the amount thereof. 2. Criminal Conversation: Juries. The jury, in an action for criminal conversation, may consider the actual misconduct of defendant, the social relations of the parties, the existence of or lack of affection between the spouses, the destruction of the plaintiff's home and happiness, and the pecuniary situation of the parties. 3. Criminal Conversation: Damages: Verdicts: Juries. In an action for criminal conversation, the courts will seldom interfere with the finding of the jury, for the reason that there is no method of determining exactly the proper pecuniary compensation which should be awarded.
Appeal from the District Court for Douglas County: THEODORE L. RICHLING, Judge. Affirmed.
Donald H. Bowman and Michael O. Johanns of Peterson, Bowman, Larsen Swanson, for appellant.
Charles I. Scudder, for appellee.
Heard before WHITE, C.J., BOSLAUGH, McCOWN, CLINTON, BRODKEY, and WHITE, JJ., and FAHRNBRUCH, District Judge.
The plaintiff, Leanne M. Kremer, recovered a judgment in the sum of $10,000 on a cause of action for criminal conversation, and defendant Sheryl Black appeals. Summarized, the defendant contends that the court should judicially abolish the cause of action for criminal conversation; that there was prejudicial error in the admission of testimony as to the financial ability of the defendant; and that the verdict is excessive. We reject the contentions of the defendant and affirm the judgment of the District Court.
Since no question as to the sufficiency of the evidence has been raised, a brief background statement of the essential facts is all that is necessary for a determination of the issues presented. The plaintiff wife met Donald Kremer early in 1975. They were married on February 14, 1976. The evidence shows that the plaintiff and Donald Kremer began having trouble and physically separated about July 21, 1976. The petition for dissolution of the marriage was instituted by Donald Kremer, plaintiff's husband, on August 16, 1976, and the decree of dissolution was entered in the District Court for Douglas County, Nebraska, on March 1, 1977. The evidence supports the conclusion that during the whole period of the marriage and the courtship in 1975, the plaintiff and Kremer had numerous difficulties and fights, and temporary separations, but would become reconciled and continue their relationship. The defendant's testimony is that she began staying with Kremer in the second week of August 1976, after the physical separation of the parties, but before the petition for dissolution of the marriage had been filed by Kremer. In the period following the separation and the filing of the action for dissolution, the defendant and Kremer lived together. Sexual relationships between them were admitted. There was further testimony as to the financial condition of the plaintiff and plaintiff's former spouse, which will be referred to later in this opinion.
On appeal the defendant assigns as error that the court failed to instruct the jury that the elements of malice, intent, and causation must be proved to allow recovery for criminal conversation. The defendant concedes that these are not elements of the action, and cites no authority to support this precise contention. She concedes that there is a lack of defenses, once sexual intercourse is proven with the extramarital defendant prior to the termination of the marriage. Also conceded is that damages in all cases are presumed and that no fixed rule exists for their measurement. See Breiner v. Olson, 195 Neb. 120, 237 N.W.2d 118 (1975).
The defendant's argument is, in fact, a spirited attack against the existence of the common law action of criminal conversation, and a plea to this court for the judicial abolition of the action. It is true that 11 states have by statute eliminated criminal conversation as a cause of action. The defendant strongly argues, on policy grounds, the propriety of permitting such an action where, as here, the plaintiff's own husband is the seducer of the defendant. She urges, and finds support in critical law reviews, it should be a defense that the plaintiff and her spouse were separated at the time the acts complained of occurred. She also argues the reasoning developed at common law behind stripping a defendant of all defenses to an action in criminal conversation, save the plaintiff's consent, no longer, under present social conditions, merits endorsement. The defendant argues that due to the presumption of damages in criminal conversation, and the presence of emotional and moral indignation, the awards of damages tend to be punitive in nature and bear no real relation to pecuniary loss.
The common law is well settled that the sexual relation of marriage is one that must be maintained inviolate for the well-being of society. The law protects the right of one spouse to have exclusive marital intercourse with the other. Whenever a third person commits adultery with either spouse, he or she commits a tortious invasion of the rights of the other spouse, from which a cause of action for criminal conversation arises. See 41 Am. Jur. 2d, Husband and Wife, 476, p. 402.
The defendant would have us reexamine the different conflicting policy considerations involved, and, in effect, abolish the cause of action for criminal conversation as it presently exists. The answer to that is simply that this court has consistently upheld a spouse' right of recovery for criminal conversation. Two of these cases are quite recent. White v. Longo, 190 Neb. 703, 212 N.W.2d 84 (1973); Breiner v. Olson, supra, (1975); Hansen v. Strohschein, 178 Neb. 367, 133 N.W.2d 598 (1965); Smith v. Meyers, 52 Neb. 70, 71 N.W. 1006 (1897). See, also, The Case for Retention of Causes of Action for Intentional Interference with the Marital Relationship, 48 Notre Dame Lawyer 426 (1972).
The defendant, in effect, asks this court to judicially legislate the cause of action for criminal conversation out of existence. The merit of defendant's argument is a question properly for the Legislature and it is the appropriate forum for a decision to abolish the cause of action. Under the fundamental principle of the division of powers in our government, judicial intrusion and investigation into social policy-making areas is forbidden. The authority that the defendant's research reveals illustrates the problem. Defendant, in effect, calls on this court to define and strike the balance on the volatile moral issues involved. Even a minimum of judicial restraint would indicate that the Legislature is the proper forum for relief, if such is advisable. We reject the contention that the cause of action for criminal conversation should be abolished.
The defendant argues the District Court erred in admitting evidence relating to the financial standing of the plaintiff and her former spouse. The plaintiff offered into evidence exhibit 2, which consists of handwritten notations of deposits in her checking account from January 17, 1975, to August 19, 1976. Additionally, the plaintiff offered into evidence copies of her bank statements covering approximately the same period. The plaintiff also testified as to her income and Donald Kremer's income during the time they lived together. It is noted that there is no contention here there was an attempt to introduce in evidence the assets of or the capacity of the defendant to respond to damages. In the recent case of Breiner v. Olson, supra, this court stated as follows: "In the absence of evidence of some special element of damage for which the law provides a specific means of measurement, it is the general rule that in an action for criminal conversation damages are incapable of precise measurement and there is no fixed rule for determining the amount thereof." (Emphasis supplied.) Furthermore, in Breiner v. Olson, supra, this court specifically held, in determining the validity of an instruction in a criminal conversation case, that the jury could consider: "* * * the actual misconduct of defendant, the social relations of the parties, the existence of or lack of affection between the spouses, the destruction of plaintiff's home and happiness, and the pecuniary situation of the parties; and it has been held that the damages recoverable are fair compensation to plaintiff for the wrong so done him or her * * *." (Emphasis supplied.) There is no merit to this contention.
The third assignment of error is that a new trial should be granted due to the excessiveness of the damages which, it is contended, were clearly awarded due to the passion and prejudice on the part of the jury. The defendant cites only one Nebraska case, Breiner v. Olson, supra. In that case, this court made the general statement that a jury verdict in a criminal conversation action should be set aside as excessive only where it clearly appears that the award was the result of passion and prejudice on the part of the jury. We observe in the Breiner case, in which the evidence was substantially similar to the present case, this court sustained a judgment in the sum of $25,000. In that case there was proof of only one act of intercourse, and no direct evidence of pecuniary damage, and, as here, the jury returned a verdict for the defendant in the accompanying action for alienation of affection. In White v. Longo, supra, a recent case, this court approved a verdict for $12,500 for criminal conversation. In the latter case, it is significant that the parties were physically separated long before the action was brought.
We point out that in the present case the marriage between the plaintiff and her spouse lasted 13 months. There is testimony to support that it was a good marriage during extended periods of time in this period. They had reconciled their disputes many times before. The plaintiff's spouse moved out of their home and into the home of the defendant at the beginning of August 1976. He did not initiate an action for divorce until August 16, 1976. There is evidence to support the finding that the plaintiff attempted in numerous ways to convince her spouse to return to their family home during this period of time, all to no avail. The evidence does sustain the finding that the act of criminal conversation occurred before the petition for dissolution of the marriage was actually filed. In Hansen v. Strohschein, supra, this court held that a verdict of $5,000 was not excessive in a criminal conversation action because it fell within the rule announced in Baltzly v. Gruenig, 127 Neb. 520, 256 N.W. 4 (1934), which stated: "Courts will seldom interfere with the finding of the jury in such actions, for the reason that there is no method of determining exactly the proper pecuniary compensation which should be awarded."
We have examined the contentions of the defendant and find they are without merit. The judgment of the District Court is correct and is affirmed.
AFFIRMED.