*1 relief will be order.’ shown before
[citation omitted]
Dixon, supra at 703. persuasively argues
Defense counsel
that: higher
Logic degree that if a dictates necessary to
prejudice demonstrate severance, and severance is then
need for
grаnted, prejudice must severe be preclude admission sev-
enough to prior bad act.
ered counts agree.
I I reverse remand for a writing.
new trial consistent PICKERING, Plaintiff S. Appellant, M. PICKERING Thomas
Kimball, Defendants and
Appellees. 16145, 16150.
Nos.
Supreme Court South Dakota. Aug. 30, on Briefs 1988.
Considered
Decided Jan.
alienation of affections and tortious inter- ference with a marital against contract Tom, negligent fraud and deceit and mis- representation against Jody, and intention- al infliction of against emotional distress Jody both and Tom. The grant- trial court summary ed judgment in of Jody favor and Tom on all except causes alleging causе alienation of affec- against tions Tom. From the order of the court, appeals. trial Paul Tom raises part notice of that review the trial order denying court’s his motion for sum- mary judgment on the cause of action alleging alienation affections. We af- firm. and Jody February were married thereafter, Jody 1981. Sometime be- acquainted
came with Tom work at and the developed two platonic relationship. January, Jоdy Tom and travelled together Tampa, Jody to Florida. desired friend, go Tampa to visit to to but wanted travelling companion with whom she expenses trip. could share the Since Jody previously Tampa, Tom resided in asked him if be interested accompanying spent very her. The two together little time Florida. During trip, perceived and Tom after Jody unhappy. approached that He by asking if topic with her she was percent “ninеty-nine happy with her life.” responded ninety Jody she even wasn’t percent happy and indicated romance longer marriage. in her was no Although Jody expressed that she loved Paul, felt her for him she affection Nasser, Jr., Troy Dean N. Leonard of strong as previously was not as had Offices, P.C., Palls, Law Nasser Sioux been. plaintiff appellant. and February, In late Tom mentioned Pruitt, D. & Casey Richard Matthews song Jody to that he had written about Falls, Muilenburg, Sioux for defendants trip their and invited her to his Florida appellees; Goetzinger, Legal and Patrick apartment Jody it. to hear Tom ar- Pruitt, Muilenburg, Intern for Matthews & ranged go apartment Tom’s after Falls, Sioux on brief. they apart- work. After arrived at the ment, together on the floor the two sat WUEST, Chief Justice. kissing, ultimately began led to sexu- (Paul), brought Thereafter, Pickering Paul S. an ac- al their li- intercourse. sexual wife, estranged Jody tion his M. aisons continuеd for several months until Pickering relationship (Jody), paramour, Jody her Thom- broke off the because (Tom). complaint alleged feelings guilt. as Paul’s her Kimball him, she did not want to hurt but she subsequently resumed Jody Tom and January fact to him on relationship finally disclosed this several discontinued paternity testing usually Subsequent off broke Although times. confirmed that Tom was the father of Tom of her overwhelm- relations with out always child. ing guilt, she initiated sense of *3 relationship because resumption of their Jody attempted to reconcile Paul and and her desire deep affection for Tom her marriage marriage and visited a coun- him.
to be with
however,
unsuc-
attempt,
selor. This
was
into a
relationship
Jody
baby
cessful and
and the
moved
off her
Jody again broke
apartment.
Shortly
separate
there-
January,
with Tom
preg-
after,
she was
discovered that
she
29, 1986,
July
a suit
On
Paul commenced
was the
certain that Tom
nant. She was
against Jody and the
for divorce
carrying
she was
be-
father of the child
alleging
and Tom
inten-
action
Jody
her and
between
cause sexual relations
distress,
of emotional
fraud
tional infliction
Jody
infrequent. After
Paul had been
deceit, negligent misrepresentation,
pregnant, she seduced
she was
learned
interference
a marital con-
tortious
with
with him.
Paul and had sexual intercourse
tract,
Motions
and alienation of affections.
he was the
Jody
Paul to believe
wanted
summary judgment
submitted
were
to avoid
child’s father. She also desired
1, 1987,
plaintiff May
on
defendants and
hurting
preserve
their mar-
Paul and
15, 1987,
May
respectively. After a
later, Jody indicated
riage.
weeks
Several
granted summary
hearing, the trial court
experiencing symp-
to Paul that she was
Jody
on all causes of
judgment
favor of
pregnancy
A home
pregnancy.
toms of
and in favor оf Tom on all causes of
“suspicions.” Paul
these
test confirmed
except
alienation of affections.
results,
test
but he
surprised by
was
summary judgment was
Paul’s motion for
fact,
by them.
In
pleased
nonetheless
was
It
from these orders that Paul
denied.
is
Jody’s being preg-
so ecstatic about
was
appeal.
and Tom now
to the
he “shouted it
world.”
nant that
reviewing
of sum
grant
or a denial
of her
Two months after
advent
15-6-56(c),
mary judgment
we
under SDCL
again
her sexuаl
pregnancy, Jody
resumed
moving party
must determine whether the
it until
relationship
Tom and continued
with
any genuine
demonstrated the absence of
daugh-
prior
of her
two weeks
birth
entitle
issue of material fact and showed
time,
During this
Tom was under
ter.
judgment on the merits as a mat
ment to
Jody
pregnant with
impression that
was
Intern., Inc. v. Tenne
ter of law. Groseth
Paul’s child.
co, Inc., 410 N.W.2d
159,
(S.D.1987).
daughter
Septem-
Jody gave
to a
on
birth
most favor
The evidence must be viewed
аnd Tom continued to
ber
1985. She
nonmoving
reason
ably
party
to the
other,
they did not resume
see each
but
against the
doubts should be resolved
able
nearly
relationship until
two
their sexual
Northern
Wilson v. Great
moving party.
Although Jody
passed.
main-
months had
Co.,
207, 212,
Ry.
157 N.W.2d
S.D.
paterni-
the child’s
tained her silence about
(1968).
nonmoving party,
birth,
during this
ty following its
it was
showing
present specific
must
facts
family
Tom noticed a
period of time that
trial exists.
genuine, material
issue for
toes. He then confront-
baby’s
trait in the
362, 364
Murray,
Ruane
380 N.W.2d
paternity of the child and
Jody
ed
about the
(S.D.1986).
appeal is to deter
Our task on
not the father
she admitted that Paul was
genuine issue of mate
only
mine
whether
and that he was.
the law was
rial fact exists and whether
this,
correctly applied.
If there exists
basis
learning
insisted that he
Upon
Tom
court,
ruling of the trial
supports the
responsible
raising the child and that which
be
summary judgment
prop
the child's
affirmance of a
immediately notified of
Paul be
Chip
Hiland Potato
Weatherwax
Jody
to tell Paul
er.
paternity.
hesitated
true
Co.,
Ruple
118, 120(S.D.1985);
the child’s father because
that he was not
(S.D.
agree
Weinaug, 328
allegations
N.W.2d
859-60
that his
nor-
mally
1983).
would suffice to state a cause of
fraud,2
subject
action for
we believe the
first address the
court’s
We
trial
matter of this action is not one in
granting summary judgment
in favor of
appropriate
for the courts to intervene.
alleg
and Tom on the cause of action
The exact issue that now confronts us
ing
intentional infliction
emotional dis
addressed
the California
Court
tress.
believe the tort of intentional
We
Appeal in
Superior
Richard P. v.
Court
infliction
distress should be
emotional
(Gerald B.),
202 Cal.App.3d
249 Cal.
unavailable
matter
(1
Rptr.
Dist.1988).
The court barred
predicated
when it is
on conduct which
public
the action
basis
policy,
marriage.
leads
of a
to the dissolution
See
*4
stating:
(Gerald
Superior
B.),
Richard P. v.
Court
Broadly
“tort,”
speaking,
the word
(1
Cal.App.3d 1089,
202
249
246
Cal.Rptr.
wrong,
means a civil
other than a breach
Dist.1988);
208
Bogy,
Haldane v.
Cal.
contract,
of
pro-
for which the law will
302,
(2 Dist.1962);
App.2d
Cal.Rptr
25
392
remedy
vide a
in the form of an action
Meter,
v.
497
Van Meter Van
328 N.W.2d
for damages.
It does not lie within the
(Iowa 1983) (McCormick, J., dissenting);
power
any judicial
however,
of
system,
to
328,
Hafner,
N.J.Super.
343
v.
135
Hafner
A.2d 166
remedy all human
There are
wrongs.
(Law Div.1975);
Artache
Gol
many wrongs which in themselves are
din,
596,
(2
133
519
702
A.D.2d
N.Y.S.2d
flagrant.
instance,
For
wrongs
such
as
803,
Dept.1987);
Jeffer,
Baron v.
98 A.D.2d
words,
betrayal, brutal
and
dis-
heartless
(2 Dept.1983);
469
815
N.Y.S.2d
Weicker
regard
feelings
beyond
of
of others are
Weicker, 22 N.Y.2d
290 N.Y.S.2d
any
legal remedy
and
effective
prac-
(1968). Furthermore,
237
876
N.E.2d
the
tical administration of the law.
at-
To
already provides
remedy
law of
state
this
a
tempt
give
wrongs
to correct such
or
type
for this
of claim in the
of an
form
relief from
“may,
their effects
do more
against
paramour
action
the
for alienation
damage than if the law leaves them
of affections.
alone.”
allegation
nextWe
examine Paul’s
CaLRptr.
249
(quoting Stephen
Id.
at 249
against
of
and
Jody.
fraud
deceit
Paul
L.,
640, 642-43,
105 Cal.App.3d
K. Roni
kept
Jody intentionally
contends that
him
Cal.Rptr.
(2 Dist.1980)) (cita
619
“in
regarding
the dark
the illicit
and
affair
omitted).
tions
The court continued:
paternity
the true
of
child”
the
and caused
any wrong
We conclude here that
friends, family,
him to “profess to his
and
a
which
occurred as
of
has
result
[the
his
that
church”
he was the child’s natural
can
actions is not one that
defendant’s]
declarations,
father. As
result
these
of
in
not
be redressed
a tort action. We do
humiliation,
Paul suffered “untold
embar
doubt
this lawsuit emanated from
rassment,
scarring.”1
and emotional
an unhappy situation in which the real
We need not determine whether Paul
parties
grief.
has
in interest suffered
We
prima
feel,
established a
facie case on
tort
this
that the
children
innocent
significant
because we conclude
his action for
may
here
suffer
harm from
having
family
litigation
fraud and deceit also should
be barred
involved
public policy. Although
exactly
matter
is
the
we
such as this
that this
complaint,
sought recovery
required
In his
also
to
Paul
2. The
elements
sustain
essential
an
(1)
representa-
exрenses
include
a false
maternity
for fraud
and child care
incurred
fact; (2) knowledge
tion made
a statement
as
granted
him. The trial court
Paul’s motion for
(or recklessness) by
party making
repre-
the
summary judgment
expenses
to
as
these
untrue;
(3)
an
sentation that
intention that
to
allowed him
recover
and Tom
representation
party
should
other
induce
plus
amounting
$2893.85
$650.
to
interest
act;
(4)
representation
to
reliance on the
parties appeal
portion
None of the
this
party. Sperry
of the innocent
detriment
judgment.
trial court’s
(S.D.
Schaeffer,
Corp. v.
1986).
brief,
which,
pro- he
Tom. In his
Paul
type
if allowed to
asserts
of lawsuit
ceed,
damage
analogy
result in more social
invokes an
to an action
inten-
might
performance
if the courts decline to
than will
tional interference with the
occur
“We do not believe that
setting.
intervene.
in a
a contract
commercial
We
for such inter-
provide basis
expressed
law should
that the cause
is more
believe
familial warfare.”
as one
accurately characterized
for alien-
affections,
claim with
we
ation of
(citation
P.,
at 249
Cal.Rptr
Richard
later,
did
deal
and hold that
trial court
omitted).
summary judgment
not
granting
err in
reasoning
the court in
We
find
issue.
favor of Tom this
Allowing Paul to
persuasive.
Richard P.
may
cause
maintain this cause of
has
We find no South Dakota case that
daughter
signif-
suffer
Jody’s
Tom’s
held the tort of intentional
interference
party,
This
who
icant harm.
innocent
as
with a contract to be available
a cause
old,
subject-
not be
years
should
now three
arising out of marital
action in situations
type
of “interfamilial warfare.”
ed
this
relationship and
note
other
further
unsympathetic
are
because
We
not
recognize
also refused to
courts have
and humiliation
embarrassment
settings.
cause of action in similar
See
redress, this
Any attempts to
suffered.
(Ala.1987);
Avery,
So.2d 173
Howton v.
*5
however, may
wrong,
do more social dam-
Stores, Inc.,
Ala.
v. Moskin
272
Norris
it
age than if the law leaves
alone. We
174,
(1961);
judgment
Jody,
in
of
was
favor
really actions for alienation of affec
were
appropriate.
tions,
in
tort which had been abolished
a
action,
jurisdictions.
respective
In
third
of
The courts
his
cause
Jody negligently misrepre
attempts
contends that
to allow these
to circum
refused
he
the
him that
was
child’s fa
judicially
legislatively
sented to
vent the
or
abolished
Paul,
mistakenly
disguising
ther.
sets forth
as
by
the suits
causes of
inapplicable
Although
cause
that
to the
a
of action
state
types
other
of torts.
this
of
The tort of
facts
the
case.
has
tort of alienation
not abolished the
negligent misrepresentation occurs
in
when
affections,
plaintiff’s
we also decline
invita
any other trans
the course of a business or
aсknowledge
tion
this
cause of
inventive
pecuni
a
action in
an
has
which
individual
recognize
see
reason to
an
action. We
no
interest,
ary
supplies
he or she
false infor
essentially repackaged cause of
that
guidance of others in their
mation for the
pleaded.
specifically
already has been
transactions,
exercising
business
without
final
of action
Paul’s
cause
obtaining
in
or communi
reasonable сare
against Tom is alienation of affec-
asserts
(Sec
cating
Restatement
the information.
the other causes of action
tions. Unlike
ond)
(1977).
also
of Torts
552
Moore
See
§
Paul,
by
presents genuine
brought
this one
89 S.D.
Agency,
Lane Ins.
Kluthe &
appropriate
that are
issues of material fact
(1975). Because Paul’s
763
MORGAN, J.,
such
cоncurs.
between
conduct
loss.”
connection
Miller,
401 N.W.2d
Pankratz
HENDERSON, SABERS and
(S.D.1987);
Hunt,
Hunt v.
MILLER, JJ.,
part
in
concur
(S.D.1981).
Pankratz,
In
we stated:
part.
in
dissent
right growing
out of
Consortium is
relationship.
marital
This term includes
HENDERSON,
(concurring
Justice
in
right
spouse
society,
of either
to the
part).
in
part, dissenting
affections,
companionship, conjugal
First,
in
majority opinion’s
I concur
impair-
assistance
other. A
or
loss
expression,
as buttressed
decisional law
ment
such elements will sustain
state,
this
in
that
thе doctrine of inter-
an action for alienation of affections.
spousal immunity in tort actions has been
However,
appears
if
was no af-
there
Therefore,
abolished in this state.
each
alienate,
precluded.
recovery
fection to
individually
tort must be
as to its
assessed
(citations
Pankratz,
764 207, 212, Co., concur, 83
Fourth,
Ry.
and for the reasons
S.D.
I
(1968).
opinion in its hold-
majority
stated
interference and fraud
ings, on tortious
Therefore,
part
in
respectfully
I
concur
and deceit.
part.
in
and dissent
affections,
all
Fifth,
on аlienation
SABERS,
(concurring
part
in
Justice
my writing
in
in
set forth
of the reasons
dissenting
part).
in
Hunt,
majority
respectfully
I
dissent to
opinion except
majority
I concur with the
writing.
the dismissal of Paul’s causes of
as to
leaves,
this
is con-
This
so far as
Justice
against Jody for fraud and intention-
cerned,
tort action for the
one available
al infliction of emotional distress.
is the
pursue,
and that
plaintiff-appellant
determined that
there
trial court
of emotional
of intentional infliction
tort
genuine
of material fact to
were no
issues
my theory, there would be
distress. Under
against Jody
granted
her
be decided
recovery
overlapping
or
duality
no
summary judgment on all
motion for
strictly
damages if
case
tried
were
Obviously,
gen-
there are
causes of action.
of emotional dis-
upon intentional infliction
concerning in-
uine issues of material fact
However,
tress.
I would restrict
survival
tentional
infliction of emotional distress
(husband) against
Kimball
of action Paul
Therefore,
and fraud and deceit.
the trial
(lover);
adopt
I
thereby,
majority
court erred and the
affirms that
arguments ap-
these
arguments insofar as
Gordon, 407
Bego
error.
N.W.2d
(husband)
regarding
suing
ply
Inc.,
(S.D.1987); Trapp Madera
Hence,
Pacific
(wife).
I
hold that Paul
(S.D.1986);
ture that task enact- ing (liability damage SDCL 20-10-1 STOBER, Allen Rоbert Defendant deceit) (acts caused and SDCL 20-10-2 Appellee. deceit). constituting pro- Neither statute person recovering damages hibits No. 16040. spouse for deceit from either a or an ex- Supreme Court of South Dakota. spouse. permitting view statute recovery and the absence of any statutory Considered on Briefs Oct. 1988. prohibition, deny can the majority how re- Decided Jan. covery unexpressed public on an рolicy? If recovery denied, is is beginning what the policy what the end of or rule? majority overstepping is clearly its usurping rightful
bounds and itself
power legislature. and tasks of the context, interesting
In this note granted
that the trial court recovery
against Tom for medical costs and ex-
penses $2,893.85, plus the amount of $650.00, granted
interest Tom in-
demnity against Jody for one-half Although
amount. neither Tom nor
appealed judgment, from that it is interest-
ing note majority’s that the concern over
“interfamilial warfare” was not sufficient recovery prevent also and the in-
demnity based thereon.
MILLER, J., joins special in this
writing am and I authorized to so
state. *8 Furthermore, already the law this state remedy provides type for this claim paramour an the form of for alienation affections.
Obviously, quoted language bearing has no against Jody. claim Paul’s