Duane C. PANKRATZ, Plaintiff and Appellee, v. Winston MILLER, Defendant and Appellant.
No. 15234.
Supreme Court of South Dakota.
Decided Feb. 25, 1987.
401 N.W.2d 543
Considered on Briefs Oct. 22, 1986.
We note that in at least six of the jurisdictions above cited this rule was applied where the surface owner was extracting the substance in question, as was Novotny in this instance. See Bambauer, Little, Holloway, Fisher, Holland, Shores, supra. However, the rule is even more persuasive when the grantor who reserves mineral rights either in whole or in part seeks to exercise the reservation against the will of the grantee whose use of the land would be greatly, if not totally, frustrated. We further note that in Salzseider v. Brunsdale, 94 N.W.2d 502 (N.D.1959), the North Dakota Supreme Court applied this rule despite the existence of a statute virtually identical to
Our conclusion is reinforced by the fact that the trial court‘s ruling may well have placed into question the ownership of the surface and subsurface of significant portions of western South Dakota. Affidavits of Novotny‘s experts stated the material taken from Novotny‘s land was common in that area of the state. Again, we assume this to be true on appeal. Therefore, the trial court‘s ruling if allowed to stand could result in destruction of the surface and unsettle the ownership of this and other land bearing similar title reservations. See Atwood v. Rodman, 355 S.W.2d 206 (Tex.1962).
Viewing the record most favorably to Novotny, it appears the material in question could not have been extracted without destroying the surface of the deeded land. Furthermore, there is an absence of evidence in the record that the parties intended to reserve this material, other than the general reservation of “mineral rights.” Under the rule regarding destruction of the surface estate which we adopt in this case, there must be other evidence allowing the conclusion that the parties intended to reserve the substance. These are genuine factual questions which precluded a grant of summary judgment.
Reversed.
All the Justices concur.
MILLER, J., not having been a member of the Court at the time this action was submitted to the Court, did not participate.
Rory M. Barth, Sioux Falls, George T. Qualley, Sioux City, Iowa, for plaintiff and appellee.
Sidney B. Strange, Strange & Palmer, Sioux Falls, for defendant and appellant.
Winston Miller (Winston), appeals the trial court‘s decision holding him liable for damages in a civil suit for alienation of affections. We reverse.
Facts
Elke Pankratz (Elke), is the estranged wife of plaintiff Duane C. Pankratz (Duane), a veterinarian. The Pankratz‘s were married in July of 1967. They had five children, three of whom are still surviving. Elke was born in post-war Germany. Duane is a native of Freeman, South Dakota. The couple met when Duane was traveling and working in Europe. Elke initiated a divorce action in Turner County, South Dakota, in the summer of 1984. At present, no judgment and decree of divorce has been entered in this matter.
Winston and Duane grew up together in Freeman. They were friends during their formative years and participated in some of the same school and church activities. Although Winston visited Duane once while he was attending college in Ames, Iowa, they apparently drifted apart after high school.
Winston returned to South Dakota in the fall of 1982, and became employed as an insurance salesman with his brother. The Miller brothers contacted Duane toward the end of 1982 in an effort to sell him a policy. Duane agreed to purchase life insurance for Elke and the policy was ultimately sold in March, 1983. Winston met Elke for the first time during these negotiations.
In the spring of 1983, Elke decided to attend summer school for art classes at Augustana College in Sioux Falls, South Dakota. This decision was met with substantial resistance from Duane and the children, even though this was something Elke had wanted to do for quite some time.
Elke began commuting to school daily from Freeman. Later in the summer, she began spending one night a week at the Sioux Falls Airport Holiday Inn to lessen the commute, and afford her more time to study. In the fall of 1983, Elke took an apartment in Sioux Falls. According to her deposition testimony, she considered this a “separation” from her husband and only returned to Freeman on the weekends to see the children. In its memorandum opinion, the trial court specifically found that there was no evidence to establish that Winston had anything to do with Elke‘s decision to attend Augustana College or to take up residence in Sioux Falls.
Elke initiated contact with Winston at about the time she began summer school. She invited him to dinner at a Sioux Falls restaurant where she picked up the check. According to Winston‘s testimony, he expected to be meeting with both Elke and Duane on this occasion. During dinner, Elke told Winston that she had been unhappy with her marriage for many years, that there were problems, and she questioned him about life as a divorced, single person.
There was substantial defense evidence that the marriage between Duane and Elke had deteriorated past the point of reconciliation long before Winston‘s involvement. There was also substantial evidence presented through Duane‘s testimony that the marriage was not hopelessly beyond repair, but rather it was Winston‘s persuasive influence which enticed Elke away from her home and family.
The trial court entered Findings of Fact, Conclusions of Law, and a Judgment on October 31, 1985. Finding of Fact 11 states:
Though there were problems in the marital relationship between DOC [Duane] and ELKE PANKRATZ, there was love and affection to form the basis of a reconciliation of the marriage. The seduction and sexual relationship of WINSTON MILLER with ELKE PANKRATZ destroyed the possibilities of reconciliation. WINSTON MILLER‘S conduct was wrongful with the result being to entice ELKE PANKRATZ away from the home and bed of DR. PANKRATZ. The deliberate acts of WINSTON MILLER caused the relationship of husband and wife to come to an end.
The court concluded that Winston‘s seduction and resulting sexual relationship with Elke interfered with, and destroyed the ability of Duane to reconcile and save his marriage. The trial court awarded Duane $10,000 in actual damages and $10,000 in exemplary damages.
Winston‘s Claims
Winston raises two issues on appeal. First, he urges this court to judicially abolish alienation of affections as a legal cause of action. Secondly, Winston claims that the evidence overwhelmingly demonstrated that there was no causal connection between his conduct and Elke‘s loss of affection for her husband which had been alienated long before their involvement.
1. WHETHER THE COMMON-LAW TORT OF ALIENATION OF AFFECTIONS SHOULD BE ABOLISHED AS A LEGAL CAUSE OF ACTION
The right to recover under the doctrine of alienation of affections has its origin in the common law. Hunt v. Hunt, 309 N.W.2d 818, 820 (S.D.1981). This common law basis exists despite statutory codification.1 Id. In Hunt, we abolished the common-law tort action for criminal conversation but preserved the tort of alienation of affections.2 The national trend is toward the judicial or statutory abrogation of alienation of affections as a legal cause of action. Id. at 821-822 and cases cited therein; Fundermann v. Mickelson, 304
In his concurring opinion in Hunt, supra, Justice Dunn wrote:
While I agree that criminal conversation should be abolished, I am convinced that the tort of alienation of affections should be preserved until repealed by legislative action. It is one thing to abolish an action in tort which is devoid of defenses and unjust. It is quite another to abolish a long-standing legislative and judicial intention to preserve the sanctity of marriage by providing a civil remedy, and where reasonable and just defenses are available to a defendant. . . . I feel certain that a case will arise in the future where some party has so flagrantly broken up a stable marriage that we would rue the day that an alienation suit was not available to the injured party.
We see no reason to deviate from this position and therefore preserve the cause of action for alienation of affections.
2. WHETHER THERE WAS A CAUSAL CONNECTION BETWEEN WINSTON‘S CONDUCT AND WIFE‘S LOSS OF AFFECTION FOR HUSBAND
The elements necessary to sustain a claim 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. Hunt, 309 N.W.2d at 820. The gist of the action is the malicious interference with the marriage relationship. Monen v. Monen, 64 S.D. 581, 584, 269 N.W. 85, 87 (1936). The loss of consortium is the actionable consequence of an action for alienation. Holmstrom v. Wall, 64 S.D. 467, 268 N.W. 423 (1936). 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. Morey v. Keller, 77 S.D. 49, 51, 85 N.W.2d 57, 58 (1957). A loss or impairment of any such elements will sustain an action for alienation of affections. Id. However, if it appears there was no affection to alienate, recovery is precluded. Trainor v. Deters, 22 Ohio App.2d 135, 259 N.E.2d 131, 134 (1969).
We review the facts with these elements in mind. Throughout her deposition4 testimony, Elke maintained that she had lost her love and affection for her husband many years before her involvement with Winston.5 She stated that problems in her marriage were evident from the beginning; that Duane was a workaholic and a very possessive, jealous, and domineering per-
Pertaining to their friendship and sexual relationship,7 the evidence shows that Elke initiated contact with Winston. She sought out his company—Elke talked about her problems, Winston listened. The first time they were intimate, it was Elke who invited Winston up to her room. She sent him cards and gifts upon occasion; he did not reciprocate. They were not in love; Winston did not promise her any future relationship, nor did she make any such promises to him. Indeed, Elke was seeing another man at the time of trial.
The record demonstrates that Elke instigated and then voluntarily participated in the affair which ultimately developed with Winston.8 It is undisputed that they had sexual relations. However, this fact is not sufficient to sustain an alienation suit where there is no evidence that Winston‘s actions caused Elke to separate from her husband.9 On the contrary, the evidence shows that Elke‘s affections for Duane were alienated long before her involvement with Winston.10
The trial court found that by continuing the affair with Elke, Winston frustrated Duane‘s efforts to reconcile with her. However, the evidence shows that Duane elicited Winston‘s advice and further involved him in the Pankratz‘s marital problems. Duane often contacted Winston to question him about Elke‘s activities in Sioux Falls, apart from any involvement she had with Winston at the time. Winston claimed that Duane admitted in February of 1984 that the Pankratz marriage had been in trouble for a long time and that Elke had had a number of affairs. Duane claimed only one other. At this meeting, Winston encouraged Duane to seek professional marriage counseling and promised him that he would refrain from having
Winston apparently did little or nothing to prevent their continuing sexual relationship, despite Duane‘s repeated requests. Even assuming that Winston‘s actions encouraged Elke to continue the friendship, the record shows that by this time, Elke held no affection for Duane for Winston to alienate. See: Trainor: 259 N.E.2d at 134.
Duane‘s testimony upon every aspect of the Pankratz marriage, as well as every incident related to this lawsuit, was diametrically opposed to that of his wife. We recognize that deference is due the trial court‘s assessment of Duane‘s credibility.
Even more important, and as noted in the Restatement Comments,11 Winston‘s conduct must have been calculated from the outset to cause Elke‘s loss of affections for Duane. The acts must have been done for the very purpose of accomplishing this result. It is not enough that Winston should have known that continuing the affair might contribute to the diminution of Elke‘s affections, where her affections for Duane were alienated before she initiated the relationship with Winston. The record falls short of affirmative conduct by Winston which in fact played a substantial part in inducing the loss.
In Pedersen v. Jirsa, 267 Minn. 48, 125 N.W.2d 38 (1963),12 the Minnesota Supreme Court reversed a finding that defendant was responsible for alienating the affections of plaintiff‘s wife. The court wrote:
A wife conceivably may transfer her affections from her husband to another because of the latter‘s kindliness, attractiveness, desirability, financial superiority, or some other reason. Such motivation . . . for the very purpose of accomplishing this result. . . . It is not enough that the actor as a reasonable person should have known that the acts might diminish one spouse‘s affection for the other. Indeed, it is not enough to realize that this will be the probable or even certain result of the acts if they were not done for the purpose of accomplishing the loss of affection. . . .
* * * * * *
k. Causal relation between defendant‘s conduct and loss of affections. To constitute a tortious interference with the marriage relation under the rule stated in this Section, the actor‘s conduct must have been a substantial factor in the loss of affections. It is unnecessary that the acts be the sole cause of the loss. If there are other causes of the loss of affections . . . there is no liability unless the actor‘s conduct has been a substantial factor in causing the loss.
Id. at 43. In Pedersen, reversal was predicated upon the fact that the jury found the defendant liable even though he was simply a good friend whose company the wife came to prefer to that of her husband. Id.
Following the Pedersen rationale, there is no evidence here to suggest that Winston enticed Elke‘s affections away from her husband. Elke was a mature woman with children, alienated and separated from her husband, who chose to engage in sexual activity with someone other than her spouse. An affirmance of the trial court would serve to absolve Elke from responsibility for her actions in relation to her husband and Winston. This we cannot do. Simply stated, the evidence fails to support an action for alienation of affections because there was no causal connection between Winston‘s conduct and Elke‘s loss of affection for her husband.
Accordingly, the judgment is reversed.
WUEST, C.J., and FOSHEIM, Retired Justice, concur.
HENDERSON, J., concurs specially.
MORGAN, J., concurs in part and dissents in part.
MILLER, J., not having been a member of the Court at the time this action was submitted to the Court, did not participate.
HENDERSON, Justice (concurring specially).
As the majority opinion, in my mind, completely retries the facts of this case from our state capitol at Pierre, I feel compelled to write specially. This case was tried to the court, without a jury, on September 17 and 19, and October 7, 1985, with a decision first issued on October 10, 1985, by a most able and experienced trial judge who thereafter entered findings of fact, conclusions of law, and judgment on October 31, 1985. True, the testimony of Elke Pankratz was by deposition and the majority opinion espouses the correct scope of review on deposition testimony. Ayres v. Junek, 247 N.W.2d 488 (S.D.1976).
However, the majority opinion treats most lightly the scope of appellate review where a trial judge has tried a case and has observed the witnesses and heard the testimony from their mouths. Perhaps we should go back to the schoolhouse and remind ourselves of some of these rules. The credibility of witnesses and weight to be accorded their testimony and weight of evidence is for the trial court. Nicolaus v. Deming, 81 S.D. 626, 139 N.W.2d 875 (1966); Lukens v. Zavadil, 281 N.W.2d 78 (S.D.1979); Scott v. Wagner, 274 N.W.2d 266 (S.D.1979). Also, this Court in Mulder v. Tague, 85 S.D. 544, 186 N.W.2d 884 (1971), put forth the rule that a reviewing court is not at liberty to change findings where the trial court has resolved conflicts in the evidence.
By the majority opinion‘s own admissions, there was great conflict in the evidence in this case. Therefore, this reviewing court should not be at liberty to change the trial court‘s findings. We have repeatedly held that it is not our function to resolve conflicts in the evidence, pass on the credibility of witnesses, or weigh the evidence. If it is a jury trial, it is the function of the jury to make those determinations; if it is a trial to the court, it is the function of the trial court to make those determinations. Determining whether a party having the burden of proof on an
In Hilde, we also held that the trial court‘s findings of fact are presumptively correct and the burden is upon appellant to show error in said findings. Further, we have held that if there is sufficient evidence in the record to support the trial court‘s decision, the reviewing court will not disturb the trial court‘s finding. McLaughlin Elec. Supply v. American Empire Ins., 269 N.W.2d 766 (S.D.1978); City of Rapid City v. Hoogterp, 85 S.D. 176, 179, 179 N.W.2d 15 (1970). See
When this Court applies the clearly erroneous standard in this case, our function is not to decide factual issues de novo.* The question is not whether this Court would have made the same findings that the trial court did, but whether on the entire evidence we are left with a definite and firm conviction that a mistake has been made. In re Estate of Hobelsberger, 85 S.D. 282, 181 N.W.2d 455 (1970). Do we find here, in the majority opinion‘s recitation, that findings of fact did not support the conclusions of law and judgment? See Knodel v. Board of County Comm‘rs, 269 N.W.2d 386 (S.D.1978); Hartpence v. Youth Forestry Camp, 325 N.W.2d 292 (S.D.1982). We have also said that our standard of review is to uphold the trial court unless its findings are “clearly erroneous.” A finding is “clearly erroneous” when after reviewing all of the evidence, we are left with a definite and firm conviction that a mistake was made. Dakota Harvestore v. South Dakota Dep‘t of Revenue, 331 N.W.2d 828 (S.D.1983). In In re Estate of Nelson, 330 N.W.2d 151 (S.D.1983), and Bennett v. Jansma, 329 N.W.2d 134 (S.D.1983), we reiterated that a finding of fact can only be reversed on a clearly erroneous standard.
* Note that the majority opinion does not appear to seriously abide by the clearly erroneous standard of review, except to point out that this, deferential standard of review does not apply to Elke‘s testimony. See majority opinion, at 548.
Therefore, I strenuously object to a retrial, in the eyes of an appellate beholder, where there is such a sharp conflict of evidence and there is an absolute reversal of the findings of fact by the appellate beholder over the trial court judge who “heard and saw it all.” This, then, is simply a factual appeal and no argument, to the contrary, can prevail against the above authorities. Appellant should not achieve a reversal on his factual appeal.
Appellant‘s second point is simply that the cause of action for alienation of affections should be abolished. In Hunt v. Hunt, 309 N.W.2d 818 (S.D.1981), I wrote that this common law tort should be abolished. My writing did not sustain a majority but was joined by Chief Justice Wollman, who is now a sitting judge on the Eighth Circuit Court of Appeals. My viewpoints were expressed quite fully in Hunt and it would serve little purpose to recite the various authorities which I previously relied upon for the abolition of this tort.
It is my opinion that a suit founded upon alienation of affections is often fraught with grave abuses. Often, it creates undue humiliation and embarrassment to families and persons who are free of wrongdoing. Many of these cases are predicated upon a vindication of a spouse‘s own shortcomings. Breakups in marriage are created by many factors and love is really not a property that may be stolen. It is, in my opinion, in the keeping of sound public policy to abrogate this tort. An action of alienation of affections inherently demeans the parties involved and the courts of law which preside over it. See Fundermann v. Mickelson, 304 N.W.2d 790 (Iowa 1981), which was cited in my writing in Hunt.
Therefore, although I disagree with the treatment of the factual issues/factual appeal by the majority opinion, I would reverse this case based upon the preservation of appellant‘s legal stance, namely, to re-
MORGAN, Justice (concurring in part, dissenting in part).
Appellant raises two issues in this appeal: (1) The sufficiency of the evidence to sustain the trial court‘s decision; and (2) The abrogation of the cause of action for alienation of affection.
In his special concurrence, Justice Henderson points out in great detail the error in the application of our simplest standards of review as found in the majority opinion. I agree with his analysis on that issue and will not reiterate it. The majority has fallen prey to the Sirens’ song urging us to jump into the jury box (or as in this case onto the trial bench) and try the factual issues anew. I prefer to accord the trial court the deference due and accordingly, I dissent on that issue.
I do agree with the majority disposition of the second issue and thereby depart from the writings of my brother Henderson. In fact, I am totally at a loss to reconcile his desire to strike down a long-standing common law remedy with his previous attacks on legislative attempts to “deadbolt and shackle our courtroom doors” evidenced by his writings in McMacken v. State, 320 N.W.2d 131 (S.D.1982) (Henderson, J. dissenting), Daugaard v. Baltic Co-op. Bldg. Supply Ass‘n., 349 N.W.2d 419 (S.D.1984), and Zacher v. Budd Co., 396 N.W.2d 122 (S.D.1986) (Henderson, J. concurring). What happened to