Veeder v. Kennedy

“away premises from the does phrase ordinary meaning: not on plain, have a VEEDER, A. Plaintiff Michael in the contract premises that are described Appellee, and Therefore, construction of insured. language is not available. N.E.2d at 50. Mapletown, 662 Myles KENNEDY, Defendant Appellant. The Ohio court considered two Co., cases, Pressman Aetna Cas. & Sur. No. 20360. (R.I.1990) Brooklyn Bridge 574 A.2d 757 Ins., 309 S.C. South Carolina Supreme Dakota. Court of South which (S.C.Ct.App.1992), found S.E.2d ambig- Argued “away premises” from phrase Dec. the Pressman case uous. It concluded that 24, 1999. Decided Feb. distinguishable the tri- factually because was “premis- al court restricted definition interior of the insured build-

es”-to within the ing. power failure in Pressman was adjacent a tree to the

caused when insured’s power leading property fell onto line into Although factually building. not distin- guishable, the court concluded that Bridge wrongly case Brooklyn decided given by the “because the construction court gave ‘away language from no effect premises.’” Mapletown, 662 N.E.2d reviewing After case law from jurisdictions, we Mapletoum find

other language reasoned decision. The the better unambiguous. of the exclusion is clear and argues description Although Lakes’ that the premises showing is ambiguous, no genuine issue of fact has been material agree with made. We the trial court premises was Lot 1 insured limited to buildings located thereon and did not hunting the leased lands used for include parties agreed purposes. Both that none of power poles or on Lot 1 lines located Therefore, damaged. power failure premises occurred the described precluded coverage. Sum- and the exclusion mary judgment is affirmed. MILLER, Justice, 12.] Chief AMUNDSON, KONENKAMP, and

GILBERTSON, Justices, concur. Watertown, Ford, Dakota

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

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

GILBERTSON, Justice. appeal is an verdict

[¶ 1.] This Michael an alienation of affections case. (Michael) brought against Myles Veeder suit Kennedy (Kennedy) for alienation of the af- spouse, fections of his former Julie Veeder (Julie). jury returned a verdict for Mi- granting compensatory punitive chael and $265,000.00. Kennedy damages totaling ap- peals. We affirm as to all issues. AND FACTS PROCEDURE Kennedy management employ- was a (Norwest) from ee of Norwest Bank 1969 to February Kennedy In came to Watertown, operations Dakota head South There at the Watertown branch of Norwest. Julie, employed also he met who was personal as a banker. In Norwest Banking Manager position of Consumer not know the opened. Since did summary judgment granted recommendations tion for applicants, he relied on the They employees. recom- summary judgment. other Norwest motion for Norwest’s position. trial, Julie for the Julie was mended After a returned a verdict of job by Kennedy accepted and she $265,000.00 offered against Kennedy. figure This it. $65,000.00 composed of damages actual $200,000.00 punitive damages. Kennedy required that Ken- position Her new filed a motion for a new trial. The motion closely together. nedy she work Over was denied the trial court. years they close friends. In three became became involved Kennedy appeals, raising the follow- relationship. affair continued sexual ing issues: May parties until 1995. At the time both public policy requires Whether married.1 Both and Julie ex- South Dakota reexamine and abolish pressed during this their love for each other the tort of alienation affections. relationship. deny- 2. Whether in the trial court erred in and Michael were married [¶4.] Julie ing Kennedy’s motion for a directed They 1975. had three children. Julie testi- verdict. with the mar- fied that her disenchantment deny- 3. Whether the trial court erred getting riage started when the children were ing Kennedy’s summary motion for with the older and Michael was not involved judgment. family. raising was the children and She working spend deny- 4. Whether the trial court full-time. Michael erred going ing Kennedy’s nights during proposed weekend the summer instruction on races, he was not involved various automobile the elements of the cause of action and children, religious upbringing he giving number instruction al- did not communicate with Julie and was 5. Whether the trial court erred in allow- spent ways money. concerned about He also ing prior the introduction of certain family nights working at the all of his week acts evidence. feelings car wash. As a result Julie’s for her deny- trial Whether the court erred began to erode. husband ing Kennedy’s motion for a new trial. Michael testified that he did not real- problems marriage. ize there were his AND ANALYSIS DECISION gave any impression never she Julie was unhappy. He claimed the letters public policy requires [¶ 8.] Whether they separated him wrote to after showed reexamine South Dakota her for him she had not lost affections before abolish the tort of alienation of affec- Kennedy. the affair with Michael contends tions. any marriage problems in the Veeder question presents ques a [¶ 9.] This only Kennedy began having surfaced after an such, tion of law. As it will be reviewed de relationship inappropriate with Julie. She Co., novo. Ins. Webb Union SD longer from Michael and was no withdrew ¶ 8, ¿69, Michael claims that Julie was vul- herself. Kennedy. predator nerable to a such as History [¶ 10.] a. the tort alienation brought 6.] Michael suit for alienation of of affections. against Kennedy affections and Norwest. action for alienation trial, [¶ 11.] As the cause of Before filed a motion sum- is central to all other issues in of affections mary judgment. A to dismiss or in motion case, analysis summary begin this we our with a dis- judg- a the alternative motion for an off- a cussion tort. This action is ment was also filed Norwest. After of.this depriving Kennedy’s the common tort for hearing the trial court denied mo- shoot of law (22) ty-two years in Octo- are still married. 1. Julie and Michael obtained divorce Myles Kennedy ber 1995. and his wife of twen- Wall, in his also Holmstrom v. quasi-proprietary interest master of his (wife (1936) al., of action and N.W. 423 cause Page Keeton et Prosser W. servant. wrongfully against anyone interfering with § Torts at 916 on the Law of Keeton (5th relationship). her marital under common law Since ed proper considered women and children states, Currently, thirty-four includ- father, tort or ty of the husband Columbia, ing statutorily the District of their services. Id. The to include extended abolished the tort of alienation of affections.3 eventually compen action shifted However, only judi- five states have done so compensation for loss of sation for services cially action which is the course of now advo- companionship perhaps the affection and five, by Kennedy. cated Of the four abol- of consortium. Id. The known term better only ished it as a common law doctrine and premise that the wife’s on tort was based one of action which was abolished cause anyone the husband and body belonged to upon a state has based statute.4 One statu- upon property the husband’s trespassed who torily money damages denied for the cause damages.2 liable for by seducing his wife was accepted action.5 Louisiana has never alien- Sutton, 310 S.C. 422 S.E.2d Russo v. ation of affections as a cause of action. See Townsend, (1992). Haney Monteleone, Moulin v. 165 La. 115 So. (1 McCord) (1821). Conversely, accord, Brown, (1927), SCL Ohlhausen recently the wife had no (La.Ct.App.1979). common law until So.2d 787 Alaska does not against anyone remedy addressing who interfered law such have statute or case relationship with her husband. Pros- her cause of action. Alienation of affections re- 124, § legitimate Law at Keeton on the of Torts mains cause of action nine ser and (enacted 1887). 25-2-15 See states.6 916. SDCL See (Mi- (1989); early Virginia, § This

2. is the writ of ravishment. VACodeAnn 8.01-220 Of note 1992); Virginia, wife to be listed as one of the § writ allowed the chie (1997); Wisconsin, West WVaCode 56-3-2a get (West He could use this writ to chattels. husband’s § WisStat 768.01 left back if she was taken force or 1998); his wife (Mi- Wyoming, WyoStatAnn § 1-23-101 her own freewill. See Prosser and Keeton under 1997). chie 124, § the Law of Torts 917. on following judicially 4. The states have abolished abolished the cause of action 3. States the cause of Idaho, for alienation of affections: action Alabama, alienation of affections: AlaCode Schuckardt, 472, O'Neil v. 112 Idaho 733 Arizona, (1993); § ArizRevStatAnn 6-5-331 Iowa, (1986); P.2d 693 Fundermann v. Mickel 1991); Arkansas, (West § Ann 25-341 ArkCode son, (Iowa 1981); Kentucky, 304 N.W.2d 790 California, (Michie 1997); § CalCiv- 16-118-106 Hoye Hoye, (Ky.1992); 422 1982); Colorado, 824 S.W.2d South (West §Code 43.5 ColoRevStat Carolina, Russo, 200, 750; Connecticut, (1998); S.C. 422 S.E.2d 310 § ConnGenStat 13-20-202 Wallace, 99, Delaware, 10, (1997); Washington, Wyman v. 94 § Wash.2d DelCodeAnn tit 52-572b Columbia, (1975); (1980). Only § District DCCo- 615 P.2d 452 South Carolina abol 3924 Florida, (1998); § ch deAnn 16-923 FlaStat ished the cause of action which had been based (1997); Georgia, § GaCode Ann 51- upon 771.01-771 a statute rather than the common law. Indiana, (1990); § 34-12-2-1 1-17 IndCode hardly persuasive abroga Russo is as its basis for Kansas, (1995); (1986); § KanStatAnn 23-208 misreading tion is a of this Court’s decision in Maine, (West 1998); § tit 14 301 MeRevStatAnn Hunt, (S.D.1981). Hunt v. 309 N.W.2d 818 The Family Maryland, § Law 3-103 MdCodeAnn interpreted Russo court Hunt to conclude that 207, Massachusetts, (1999); MassGenLaws ch abridged statutory South Dakota had our cause (1994); Michigan, MichCompLaws § 47B of action for alienation of affections when in (1988); Minnesota, § MinnStat 27A.2901 reality only minority of the Justices in Hunt Montana, (1988); § § MontCode Ann 27- 553.01 position. advocated such a Nebraska, (Smith 1997); 1-601 NebRevStat 25-21, Nevada, (1995); § NevRevStat Ohio, Representing OhioRevCode Ann (1997); Jersey, § 41.380 New NJStatAnn 1995). (Page’s § 2305.29 (West 1987); York, § 2A:23-1 New NYCivRi- 1992); ghtsLaw ta, (McKinney § 80-a North Dako- Dakota, Illinois, Hawaii, Missouri, Only South Oklahoma, (1997); § NDCentCode 14-02-06 Mexico, Mississippi, Hampshire, New New North (1995); Oregon, § OklaStat tit 8.1 OrRevStat maintain a (1997); Carolina and Utah cause of action for Pennsylvania, § 30.840 23 PaConsStat 20-9-7; Island, (1991); alienation of affections. See SDCL § § Rhode RIGenLaws 9- (West 1993) (limits Tennessee, (1997); IllCompStat damages to § 1-42 TennCodeAnn 36-3- 5/1 Texas, (1996); damage); Chang, § 701 (West actual Hunt v. 60 Haw. TexFamCodeAnn 1.107 Vermont, Schwarz, 1998); (1979); § VtStatAnn tit 15 594 P.2d 118 Van Vooren v. of affections and criminal conversation be Alienation 13.] b. affections judicially Id. abolished. in South Dakota. this cause of Dakota derives [¶ 14.] South history The Hunt Court traced which states: action from SDCL 20-9-77 Court, found, The of both causes action.9 right to recover under the doctrines of rights personal “[t]he relation forbid: criminal

alienation of affections and conver- origin, sation is of common-law and exists (2) of a wife The abduction or enticement any independent of statute.” Id. at ...; from her husband Holmstrom, (citing 64 S.D. 268 N.W. (3) wife, daughter, or of a The seduction 423; Moberg, N.W. orphan sister. considered the national trend of Court affections in of alienation of abolishing The elements criminal conversation and both Dakota are as follows: South alienation affections. Justices Henderson contended both torts had out- and Wollman defendant; wrongful of the conduct their and were “archaic hold- lived usefulness consortium; and of affection or loss overs from an era when wives were consid- connection between such con- 3. a causal Hunt, spouse....” ered the chattel of their and loss. duct (Footnote omitted). at 821. Pickering, 762- Pickering v. The two Justices voted to abolish both causes Miller, (S.D.1989) (citing Pankratz judgment of action and reverse the (S.D. 1987); Hunt, 309 trial court. 820.) N.W.2d at concurring Dunn wrote a [¶ 18.] Justice time addressed The last this Court Hunt, opinion Morgan in which Justices affections was in the issue of alienation of joined. agreed and Fosheim These Justices Pickering.8 years we have consid Over opinion Henderson’s that with Justice a number of times. See Pan ered this issue cause of action of criminal conversation Keller, kratz; Hunt; Morey v. S.D. abrogated. Id. at The should be 822-3. (1957); Colgan, v. Pearsall abrogation necessary part in because the (1956); Monen v. S.D. 76 N.W.2d 620 any meaning- provide action did not cause of (1936); Manen, 269 N.W. However, ful the three defenses. Id. Holmstrom; Scott, Moberg v. S.D. concurring abrogate to Justices refused (1917). The most extensive 161 N.W. of affections cause of action for alienation abrogation possible discussion long reasoning the cause of action had in- tort of alienation of affections found is. Legis- recognized' by the Dakota been South Hunt, 309 N.W.2d 818. upheld until lature and therefore should Hunt, decision, plurality In a repealed by legislature.’ [¶ 16.] Id. (Bonnie) brought

plaintiff Bonnie Hunt suit public policy require the [¶ 19.] c. Does Kay (Kay) alienation of against Hunt alienation abolition the tort and criminal conversation. Id. at affections affections. a prevailed on both counts with 819. Bonnie jur- $50,000.00. Kennedy argues almost all Id. at 819. On verdict of caúse of ac- Kay requested alienation have eliminated this appeal, the torts of isdictions Koch, 9.Although Henderson wrote the result (Mo.App.1995); Justice S.W.2d 594 Kirk Feldman, (Miss.1992); unanimous, joined only So.2d 1220 Feldman one Justice which was (1984); Coachman v. 125 N.H. 480 A.2d 34 writing. in Three other Justices concurred his (1996); Gould, N.C.App. S.E.2d 560 only disposition ultimate result as to the (Utah 1995). Righter, 891 P.2d 1387 Jackson abroga- concerning question disagreed over tion of of affections. alienation originally codified in 1877. 7. This statute was However, Hershey, Hershey v. we addressed in a parent's claim of alienation of affections of (S.D. child. 467 N.W.2d 484 Hunt, (Dunn, J., concurring specially Dakota should at 823 tion10 and therefore South jurisdictions. majority part, concurring part).11 in of other result follow the response is that we should follow Michael’s progressed As the common law has until it preserve the tort is re- Hunt rights it has eliminated those and remedies pealed by legislature which is the source longer justifiable that are deemed no in our jurisdiction. this of its creation in society. Kennedy argues authority from jurisdictions involving abrogation is those arguments Strong policy have been persuasive; encourage it should this Court to by advanced members of this Court in favor However, abrogate this cause of action. as abrogation. As two Justices stated Hunt, we stated in we feel this is not Court Hunt: proper resolving forum for this issue. underlying rationale for alienation suits, is, preservation of the mar- “public policy” argu [¶23.] riage, folly hope it is ludicrous. And is by supported ment of cannot be our any longer person that married who has system of law. 1-1-23 that the SDCL states philander pre- become inclined to can be sovereign power expressed by the statutes marriage by served within an affectionate legislature. enacted SDCL 20-9-7 the threat of an alienation suit.... Where which authorizes Michael’s action in cause of party marriage ... neither holds the this case is such a statute. Under SDCL 1- held, high regard that it should be abrogation 1-24 the common law and thus an ... existence of alienation of affections ... except of the common law are force where remedy] bitterness, promotes as [a fosters they statutory conflict with the will of the lawsuits, marriage vexatious uses the as a legislature expressed by as SDCL 1-1-23. means of blackmail and character assassi- single We are to locate a unable case nation, puts marriage in the market- jurisdiction where this Court struck place, generally exposes marriage public policy. down a statute as a violation of public cleansing price tag with a at- As no constitutional defects are claimed upon tached it. Kennedy, compelled we are to leave the Hunt, J.) (internal (Henderson, at 822 cita- action intact cause of and instead defer to the omitted). However, tion those Justices in legislature’s ability to if decide there is a Hunt who favored retention of the cause of legis need for its elimination. are not “[W]e policy grounds action did so on well as as empowered lative overlords to eliminate laws legislative constitutional deference to the they longer whenever we surmise are no prerogative. necessary.” relevant or Matter Certifica of Finally, Questions (Knowles), happen living because we to be tion Law 1996 SD of ¶10, 66, period frequent 183, a of loose morals and ex- 544 N.W.2d 197. The law has long recognized

tra-marital involvements is no poli reason for that a determination of put stamp approval cy court to its on this policy and the duration of that remains conduct; and I feel purview Legislature. certain that a case will within the of the Id. party legislature arise in the future where some “[W]hat ordains and con flagrantly up so marriage prohibit broken a stable stitution does not must be lawful.” ¶ Knowles, day 73, 20, that we would rue the that an alien- 1996 10 at n. SD injured 199, (citing ation suit was not to the Scougal, available N.W.2d n. 20 State v. 55, (1892)). party. 72, 858, 51 N.W. 3, 4, 5, Supra, protection note While Julie claimed to need no such relationship and indeed testified was volun- Factually, work-place this case occurred in a tary, protection SDCL 20-9-7 extends the setting. We note that the courts have become spouse Admittedly, law to the of the worker. increasingly vigilant protecting workers from scope of SDCL 20-9-7 is not limited to the by superiors sexual harassment while at work. workplace any setting justifying but to factual its Industries, Inc., Ellerth, Burlington See However, invocation. some of our cases such as 2257, U.S. 118 S.Ct. 141 L.Ed.2d 633 Pickering commenced as "office romances.” 434 (1998); Raton, Faragher City Boca 524 U.S. N.W.2d 758. (1998). 118 S.Ct. 141 L.Ed.2d 662 nonmoving party, there was sufficient evi- court erred the trial 2. Whether support dence to the conclusion there Kennedy’s denying for a di- motion marriage affections in the to alienate. verdict. rected marriage in the That there were affections of review on Our standard from the written can be drawn letters verdict is well settled: for directed motions they separated after Julie to Michael verdict under A for a directed motion “Mike, proclaimed: I would take which she 15-6-50(a) questions legal suffi SDCL my my life in a heartbeat. I miss old back a verdict ciency the evidence to sustain happened “I none of this and old life.” wish moving Upon such a against party. give “I turn back the clock.” would we could motion, determine the trial court must my again.”12 anything to have old life back any evidence there is substantial whether they marriage, loving had a Michael testified must the action. The evidence to sustain showed him affection “all the time” to the accepted which is most favorable say thing the last each was, must nonmoving party retiring night and the trial court “I other when for the love you.” legitimate therefrom This evidence is further substantiated indulge all inferences friends, by testimony family who favor. If sufficient evidence exists his thought Julie and Michael had wonderful differ, a that reasonable minds could so marriage Julie became involved with before appropriate. The verdict is not directed Kennedy. rulings on such trial court’s decisions presumed are correct and this motions Furthermore, was suffi 28.] there [¶ reverse. will not seek reasons to Court Kennedy intended to en cient evidence that State, Depart Paving, Inc. v. Julie’s affections from her husband. Border States tice Kennedy any 21, 10, Although expressly denied such Transportation, 1998 ment SD intention, jury could have drawn reason 898, 901, (citing Schuldies v. 574 N.W.2d the facts inferences and deductions from able Millar, 120, ¶8, contrary. People in Inter to conclude to Jerzak, (quoting Junge v. 519 N.W.2d (S.D. W.Y.B., est (citations (S.D.1994) omitted)); see also State any guilt if about When asked he felt 725; (S.D.1995); DeNoyer, Julie, he inappropriate relationship with Karl’s, Inc., Bridge v. replied no. carried on this relation (S.D.1995)). years, provides the ship two which for over case, At of Michael’s 26.] the close intention inference that the enticement was for a directed ver made a motion Furthermore, marriage Kennedy’s at the al. motion was renewed after both dict. This trial the result of similar time of the trial denied both sides rested. The court relationship awith fellow em extra-marital trial court claims the motions. ployee. granting motions because erred not both Clearly, existed sufficient evidence ele failed to establish two critical Michael - differ.” minds could so that “reasonable (1) in his case: that there were affec ments ¶ 10, 21 at Paving, 1998 SD Border States (2) alienate; marriage to tions in the court did not at 901. The trial 574 N.W.2d Kennedy from the outset to entice intended a denying the motion for directed err in her hus the affections of Julie from verdict. band. in the trial court erred 3. Whether [¶ 30.] Pankratz, Pickering In we stat- 27.] [¶ Kennedy’s denying motion for sum- alienate, if there are no affections ed that mary judgment. Pickering, 434 is no cause of action. there 763; Pankratz, argu- Kennedy 401 N.W.2d at 546. the same N.W.2d at advanced summary judgment for the ments in his motion light in the most favorable to Viewed verdict, obviously jury By did not its argued this but letters. 12. It is that Julie never believed accept explanation chose to be- drop and instead this her wrote it to induce Michael instead witnesses custody problems. and the numerous other Michael and smooth out child lieve lawsuit between Mi- there were affections problem Julie was who testified with this rationale is that to alienate. jury explanation chael and Julie tell the allowed to 618 damages in motions for directed verdict which To recover for alienation of

as his affections, rejected prove Plaintiff must each we Issue of

following by greater convincing elements the trial court erred in [¶ 4. Whether force of the evidence: 32.] Kennedy’s denying proposed instruc- (1) outset to Defendant intended of the cause tion on the elements spouse away entice the affection of one giving Instruction num- action and from the other. ber 13. (2) The acts the Defendant were the review, our standard of Under proximate cause of the loss of the af- jury instructions as a whole to we construe fection or consortium of Plaintiffs full they provided if and correct learn spouse. the law. Sommervold v. statement of (3) damages nature extent suf- 733, Grevlos, (S.D.1994); 518 N.W.2d 739 proximate fered the Plaintiff as a Norton, 865, 334 870 Frazier v. N.W.2d result of the Defendant’s conduct. Mueller, (S.D.1983); v. Mueller added). (Emphasis (1974). 446, 39, 450, 221 N.W.2d Mis appeal, employ prong [¶ 34.] On we a two leading, conflicting, confusing instruc approach jury par to review “A instructions: reversible error. tions create Schaffer ¶ ty challenging Co., 94, 19, jury as erroneous a instruction D. & Edward Jones SD only 801, 808; must show not ‘that the instruction was Wallahan v. Black N.W.2d error, Inc., prejudicial but that it 417, also was error Co-op., Hills Elec. 523 N.W.2d evidence, (S.D.1994). Nonetheless, to the effect that under the appellant an jury probably ... would have returned a only particular in must show not ” erroneous, City different verdict.’ Sioux Falls was but also that it struction Trust, 126, 10, Family Hone jury 1996 SD prejudicial, meaning probably 825, (Citing Chambers v. Dako would have returned a different verdict if (S.D. Charter, Inc., tah 488 N.W.2d faulty given. had not instruction been 1992) (citing Co., Guetter, Lytle Morgan, 270 N.W.2d LDL Inc. v. Cattle SD (S.D.1978))). Therefore, ¶ 32, 523, 530; Sybesma v. (S.D.1995) must first show that the instruction was Sybesma, 534 N.W.2d Charter, require error. If he meets this threshold (quoting v. Dakotah Chambers (S.D.1992)). jury Inc., proba ment he then must show that the bly would have returned a if different verdict ¶ 4, Knippling, Davis v. jury not for the erroneous instruction. 526-7. a. Was IS 35.] Instruction Kennedy argues that the trial a misstatement the law submitting jury court Instruction 13 erred erroneous. therefore jury prejudice and the created give significant. Jury claims that failure to Instruction this case was proposed jury his Instruction instruction was error. He 13 reads as follows: alleges correctly his instruction instructs the damages To for alienation of recover Jury on the element of intent while affection, following elements must be Instruction 13 does not mention intent but proven by preponderance evi- only “wrongful conduct.” claims dence: “wrongful since conduct” does not raise to defendant; Wrongful conduct of the level of “intentional conduct” the consortium; Loss affection or improperly was instructed on the element of 3. A causal connection between such con- severely prejudiced. intent and his case was duct and loss. [¶ 37.] Our case law establishes the added). (Emphasis proposed The defendant essential elements for an alienation of affec following Jury the In- South Dakota Pattern tions cause of action to be: struction 46-01 to the trial court as a substi- (1.) defendant; wrongful tute for Instruction 13. conduct of the

619 added). (Emphasis Instruc- consortium; liability_” (2.) and affection or loss of 11, jury provided with tions (3.) con- between such connection a causal require- intent instruction as to the further and loss. duct by the trial instructions used ment. The Pankratz, 762-63; at Pickering, 434 N.W.2d correctly as as does the court state the law Hunt, 546; at 820 309 N.W.2d at 401 N.W.2d by jury Kennedy. pattern instruction offered 49, 85 N.W.2d (citing Morey, S.D. was not a misstatement of [¶ 40.] As this “wrongful of the defendant” conduct This not need to reach the second our law we do by this recognized Court was first standard prong the test. Pearsall, 244, at 621. at 76 N.W.2d 76 S.D. by has, exception, been followed It without subsequent, See the trial court erred in in its decisions. 5. Whether

this Court 488; Pickering, allowing certain at the introduction of Hershey, 467 N.W.2d Pankratz, 762-3; prior N.W.2d at acts evidence. at 820; 546; Hunt, Morey, 77 at 309 N.W.2d Evidentiary rulings by made Jury Instruc- at 61. at 85 N.W.2d S.D. presumed are correct and are trial court we at all from what tion does not deviate an abuse of discretion reviewed under of alien- to the elements have declared Oster, standard. State ation of affections. (S.D.1993). The test is not whether ruling, made the same but we would have In those cases we held mind, judicial view whether we believe wrongful must be intentional. conduct circumstances, could of the law and general rule that appears to be the It also reasonably the same conclu have reached the affections of to alienate actual intent Rufener, sion. State necessarily spouse another need not (S.D.1986). conduct is inher- if defendant’s be shown to, does, ently wrong Goodroad, and tends SD State every person In words 126,129. that effect. other consequences presumed to intend is 19-12-5, provides that [¶ 42.] SDCL voluntary acts. his own admissible to prior bad acts is evidence Pearsall, 76 N.W.2d at 621 intent, motive, prepara opportunity, prove (citation omitted).13 tion, identity knowledge, or absence plan, objected Kennedy to mistake or accident. together, taken the instruc- When had an of evidence he ade- the admission with more than provide tions employee in the 1970’s. a fellow requirement affair with guidance on the intent quate breakup of both their carry his This affair lead plaintiff for a to that must be met employee marriages. example, For Instruction or her case. Kennedy contends this eventually married. the law of this state “[i]t reads: under SDCL is not admissible spouse’s information anyone alienates one purposely who any of it does not meet subject because spouse is 19-12-515 from the other affections subsequent protection and Pickering no chael claims that 13. The dissent Pankratz impunity proceed at a later time to with could of the tort. "emphasize" the intentional nature accountability. legal no affections with However, alienate along those cited cases with both "wrongful conduct of the defen- use the above provides part: Instruction language adopted trial court. Nei- dant” point single to a nor the dissent only ther actor have caused diminu- Not must adopts jurisdiction which the lan- spouse’s from this for the other case affection tion of one acts, Kennedy’s proposed guage instruction. done acts must have been but the addition, pro- language accomplishing Un- very purpose of the instruction this result. In rejected by purpose, by Kennedy properly there posed were done for this less the acts requirement liability though affection loss of it contains the is no even trial court as intend to entice the Defendant "at the outset” results.... away spouse from the other. of one affections provides: 19-12-5 15- SDCL Kennedy, if at their first This would mean that wrongs, acts is not ... meeting, Evidence of other not intend to entice Julie did business person Michael, prove the character of a provide Mi- admissible the law would statutory Furthermore, law, criteria. he ar- mistake of the verdict be should af- gues information is not relevant Wilsey, firmed. Itzen v. therefore not admissible under SDCL 19-12- (S.D.1989) (citations omitted). 313-14 relevant, 1 and even if it is it is not admissi- Risdall, Berry 1998 SD

ble under 19-12-3. SDCL 1, 4. Michael claims that [¶43.] evidence Subsequent verdict, proving agree. jury [¶47.] was relevant in intent. We Alienation of affections is an intentional tort filed a motion for a new trial. The necessary prove and it was for Michael to Kennedy presents motion was denied. two proceed intent to with his case. 19- SDCL arguments why relevant as to a new trial recognizes specifically may 12-5 “intent” be First, granted.16 should have been he claims proved by wrongs, “evidence of other ... or damages by jury returned were ex- rarely acts....” the defendant As admits cessive and the reason for the excessive dam- wrongful the crucial element of intentional ages was that given the verdict was under conduct, by plain- it must be established passion the influence of prejudice. or Sec- through tiff circumstantial evidence to avoid ond, he contends there was not sufficient being nonsuited. justify evidence to the verdict.17 Furthermore, [¶44.] the trial court cor- a. damages. 48.] Excessive rectly proper limiting included the instruc- tion, advising jury that this evidence jury [¶ 49.] The returned a verdict purpose aiding jury received for the $265,000.00, for Michael of which included determining whether had the intent $65,000.00 damages $200,000.00 in actual required to find him liable and the informa- punitive damages. Kennedy claims that any tion could not used for purpose. be other “passion several events led prejudice by or Kennedy’s prior act went to intent and was jury.” therefore relevant and admissible. 1. by Consistent references Plaintiffs Kennedy’s counsel to New York heri- [¶ 45.] 6. Whether the trial court erred in tage. denying Kennedy’s motion for a new trial. Kennedy’s Inferences that father was part of the “family.” Chase Manhattan apply following

[¶ 46.] We stan grant dard to our review of the of a motion Kennedy only 3. References that wanted for new trial the trial court: relationship for sex which was not jury’s verdict should not be set aside supported by the record. except in those extreme cases where it is Kennedy’s References counsel passion prejudice the result of or or where was counsel for a criminal defendant in palpably mistaken the rules of a well known South Dakota murder damages particular law which in a case case.18 are to be measured. SDCL 15—6— 59(a)(5).... jury’s If the verdict can Plaintiffs counsel’s claims that Kenne- explained dy’s present with reference to the evidence wife was lured by juror rather passion, prejudice than by Kennedy. her husband above, conformity in order to show he acted in 17. As we have stated we find the evidence however, may, therewith. It be admissible for was sufficient for the to return a verdict for motive, purposes, proof other oppor- such as Therefore, par- Michael. we will not revisit this intent, tunity, preparation, plan, knowledge, ticular issue. identify, or absence of mistake or accident. 16.Kennedy attorney sought Michael's also a new alludes to the fact that trial on the grounds Jury attorneys counsel for Instruction court’s failure was one require preliminary finding Moeller, in connection the defendant in State v. punitive damages prior with act evidence 548 N.W.2d 465. arguments that was introduced. We find these without merit.

621 damages. of The amount Kennedy dumped punitive amount of that Representing 6. by damages awarded must bear a rea- supported punitive the that was not Julie compensatory relationship to the sonable evidence. damages. Grynberg v. Citation Oil & Gas inferences presented 7. Counsel ¶38, 493, 121, Corp., 573 N.W.2d 1997 SD for rea- Kennedy gave advances Centrol, Morrow, Inc. 489 (citing 504 performance and than her sons other (S.D.1992)). 890, ratio Here the N.W.2d 896 unsupported competence, which to have numerous other upheld is 3 1. We by the record. ratios much more awards with substantial record, initially we Based on the than this.19 compensatory the to overturn find no basis however, $65,000. Kennedy, claims award of factor is the nature and [¶ 53.] The second in an excessive resulted inferences these enormity wrong. are bound of We damages. punitive award of jury’s determination based on its ver- on the was an intentional attack dict have held that 51.] We [¶ in which love marriage there existed Veeder punitive dam question whether to award spouses. A di- jury. between the with the and affection ages amount rests and the Co., Three minor vorce resulted for Veeders. D. & 1996 SD v. Edward Jones Schaffer II). ¶ 801, 94, 26, (Schaffer of the break- 809 were also victims 552 N.W.2d children large clearly unaccep- as to It be an up parents. the verdict is so of their would “Unless given must been under argument that it have the loss indicate table advocate passion prejudice, or it influence of did intentional misconduct spouse of one’s ¶ Id., 26, 94 at 552 1996 SD should stand.” money which was not the loss exceed omitted). (citation have We at 810 N.W.2d in our punitive damage awards basis for the to determine a five-factor test adopted Grynberg. II and recent cases Schaffer appropriate is punitive award whether factor intent of 54.] The third is the [¶ ¶ Id., at excessive. wrongdoer. Flockhart, (citing 467 N.W.2d at 810 N.W.2d 479). at will consider: We intent, degree of we determine ‘the “From con compensatory of the defendant’s reprehensibility amount allowed

1. The duct,’ most probably viewed as damages, which is of the reasonableness important indication enormity wrong, The nature and 2. damage award.” punitive Schaffer wrongdoer, The intent ¶ 32, II, at 812 at 552 N.W.2d 1996 SD 94 condition, wrongdoer’s financial Gore, (citing North America v. BMW of 1589, 1599, 134 575, 116 S.Ct. 517 U.S. attendant to All of the circumstances 826). Trickery and deceit L.Ed.2d wrongdoer’s actions. negligence. reprehensible than are more Id. nature would be Id. Of more serious injury persons to those which result acts to be 52.] first factor consid through to reckless dis “indifference compensatory dam amount of the ered is the safety of other.” regard health or for the ages relationship or ratio to the and its II, and the four would become irrelevant 94 at criteria SD See Schaffer Bower, (30 1); judicial re- would be process review N.W.2d at to entire Hoff 1); 912, 915, (S.D.1992) (27 to K & E We a turn duced to that of at calculator. Cattle, Mayer, Inc. v. 330 N.W.2d precise Land mathematical is no '[t]here held 1983) 1); (S.D. (35 Hulstein Meilman to compensatory punitive dam- ratio between Inc., Industries, (S.D. Food Therefore, to ages.’ 1] while [30 that ratio 1980) 1). (11 Lynch, v. Merrill to See Davis also concern, analyze proceed we cause must Inc., Pierce, Smith, & 906 F.2d 1206 Fenner matter in to set the ratio the other factors law) (20 (8thCir.l990) (applying Dakota South perspective. However, Grynbergwe cautioned: ¶38, (citing at 505 at 1997 SD 121 comparisons, are limit- ratio however Such II, SD 94 at Schaffer bright-line Were to be some value. there ed 810-11) omitted). (internal citation remaining implies, the as rule on ratios Jones BMW, plaintiff. brought 517 U.S. at 116 S.Ct. at Here none our See are to at- 1599, 134 repre at appear L.Ed.2d most tention and there to be none. point from the intent of view hensible Through 59.] a letter to Mi- [¶ intentional would be an malicious assault chael, jury price was informed the Mi- against person. attack a or paid chael and Julie for the affair and subse- ¶ 42, Grynberg, 1997 SD 121 at quent which divorce found was (Footnote omitted). at 506. “Husband and wrongfully by Kennedy: instituted obligations contract other wife toward each Mike ... I happened wish none of this and respect, fidelity, of mutual support.” and we could turn back clock. I But know 25-2-1. Here the acts are of the SDCL They say can’t. we there’s a for reason they serious nature as are most intentional everything. possibly Don’t know what it marriage towards Michael’s with all cor- back, could be. As I think we did have effects, responding albeit not malicious. good laugh lots of times. usedWe to and II, in [¶ 55.] As here Schaffer forgot have fun. For I some reason all defendant no showed remorse his acts my got up.... that and head All screwed jury. damages may and told the so “Punitive say truly sorry I can I’m I you is hurt and properly imposed be to further a State’s really the kids. I to never meant hurt legitimate only punishing in interests not un anyone. give anything my I would have to repeti conduct lawful but also to deter its again. old life back II, ¶ 35, tion.” 1996 SD 94 at Schaffer Requiring instigator pay of this result to BMW, (citing at N.W.2d U.S. at $200,000 penalty of not does shock our 1595, 134 at 116 S.Ct. L.Ed.2d at conscience. four, Kennedy 56.] [¶ focuses on factor that summary, evidence, In [¶ 60.] on based his financial condition is not line with his none five factors favors an overturn or pay ability Kennedy to this amount. claims modification punitive of this award of punitive damage $200,- that award of such, damages. As we not do find this ver- of 000.00is excess of his net 20% worth passion dict was the result prejudice. $750,000.00. Kennedy not does include his retirement, In [¶ 61.] conclusion affirm all vested which is a sum we on is- substantial money, figure.20 sues. this Michael contends Kennedy’s $1,568,600.00. that net worth figure MILLER,

This is the amount Justice, testified Chief figure KONENKAMP, to trial. Justice, at This includes the vested concur. Using figure retirement. punitive this SABERS, Justice, specially. concurs only award is of his net worth. 3/4% AMUNDSON, Justice, agree Kennedy’s 64.] We with Michael. dissents. net worth should be what he testified to at SABERS, (concurring specially). Justice trial, $1,568,600.00. punitive will award encourage [¶ 65.] To those who have an effect would on not enough but to legislature to abolish the shock the cause action for conscience of the court. See affection, II, alienation of I ¶37, remind them of two SD 94 Schaffer things: at 813. 1. The words of Dunn in Justice Hunt [¶ 58.] The fifth factor is consideration of Hunt, (S.D.1981): 309 N.W.2d 818 all other relevant circumstances of case. In II Grynberg Finally, both we focused happen living because we Schaffer on whether there period were other sanctions avail- loose frequent morals and ex- able, criminal, either civil or to vindicate the tra-marital is no involvements reason for a argues goes through also that we should take his worth if he ever another divorce. $750,000.00 figure net'worth it divide argument We will not entertain this since unlike half, $375,- leaving only him net worth of marriage, marriage the Veeder his survived these figure expectation 000.00. This comes from his events. give he up that will "half” of net his specifically tracks this approval language this Court’s stamp on Such put its court to conduct; will an emphasizing I feel certain a case action for decisions party some future where arise of affections is an intentional tort. alienation marriage up a flagrantly broken stable so Pickering Pickering, day rue that an alien- we (S.D.1989); Miller, Pankratz injured ation suit was not available (S.D.1987). Pankratz, Court, In party. Supreme adopting rationale of Minnesota part, in (concurring specially Jirsa, 48,125 Id. at 823 in 267 Minn. Court Pedersen “ and, concurring part) in result in (1963), grava stated: ‘The N.W.2d this —reread case! men of an action for alienation of affections is It is based on an intentional AMUNDSON, enticement. (dissenting). Justice tort,21 negligence. not The acts which lead to .issue respectfully dissent as [¶ 66.] I wrongful loss of affection be must in trial court erred and would hold the four intentional, to the calculated affections entice jury denying proposed instruction. the ” spouse other[.]’ from the of one hand, majority opin- the the one [¶ 67.] On added). (emphasis at While this prior evi- that acts ion holds on issue five required ele adopted intent as Court prov- relevant for admissible and dence was ment, majority requiring it the is not that Kennedy. part specific on ing intent the jury. in to included the instructions the hand, four, majori- on issue On other Moreover, majority only has affirmed not give to ty the trial failure endorses court’s intent, term, absent but the an instruction jury proposed pattern instruction defendant’s conduct,” “wrongful has not even been de 46-01, clearly set which would number majority fined these instructions. I it is of intent. believe forth the element by contending this that the excuses omission majority to contradictory for the patently instructions, together, “pro when construed prior acts under rationale allow intent, adequate jury guid more but then affirm vide the with than proving the element re- giving requirement instruction that does not that must be on the intent ance necessary jury ¶ as a quire to find intent approved The instruction met[.]” See 39. plaintiff claim. It is element of the obvious by majority to more than send amounts no prior prove the use of acts to understood egg an hunt to find ing the on Easter it, then specific proposed as he but intent required intent is element. whether or not objected that successfully an instruction to mislead, conflict, instructions When Argument by have shown same. er jury, it constitutes reversible confuse hearing mo- at for the plaintiffs counsel Co., v. Edward D. Jones & ror. Schaffer prior acts as follows: tion on bad was ¶94, 801, 808; Wal- 552 N.W.2d have to a case what we So this is where Inc., 523 Coop., v. Black Hills Elec. lahan prove with at least accordance (S.D.1994). By not includ that proposed is Court’s instructions here in the element of intent ing required Myles Kennedy intentionally enticed instructions, Kennedy a fair trial was denied Mike ... of Julie Veeder from affections jury. by this ways one we can show Veeder. And It is through a bad act. prior spouse who record reflects a 69.] The [¶ absolutely necessary to our case. evidence no affections repeatedly testified there were majority places be alienated. While the to jury in proposed 68.] The defendant’s [¶ had Veeder great emphasis on letters Julie regard to the first element struction stated life, expressing her if she missed old written plaintiff prove intended must “defendant record, looks these letters one one to the affections of from the outset entice problems that arose 33. written because spouse away from the other.” See (S.D.1992); Prothe, Court, defining 489 N.W.2d previous in- This decisions zones V. Bowl, Inc., tort, Sport 469 N.W.2d required Jensen intent to cause tentional actual 1991); (S.D. v. Hamm Wood Prod- VerBouwens Continental result to be shown. See Ham ucts, (S.D.1983). (S.D.1993); Co., Bra- Lumber regards custody.22 child This is not an consequence event to see as a

uncommon marriage dissolution. requested drop Mike 70.] When children, their the lawsuit for the sake of responded: Myles to “[T]ell Mike write me a check, might drop I [W]hen it.... going buy [Mike] is over he a Cor- said[,] buy plate a license vette and Myles’ upon on ‘[T]hanks it.”. Based inade- given, quate appears it now instructions driving a Plaintiff will indeed be Corvette for Myles. which he can thank [¶ 71.] I reverse and remand for proper instructions.

1999 SD 27 Request In re William Governor J. Advisory Opinion JANKLOW for an Concerning Interpretation Of South IY, Dakota Constitution Article Section No. 20920. Supreme Court of South Dakota.

ORIGINAL PROCEEDING Request Received Feb. Decided Feb. of, always Julie testified: care taken and I didn't that. I[saw] the kids for three on hours Christmas gotten It was Christmas. I had letter Eve, day and see didn’t them on attorney Mike's Christmas that —from time that he seeking custody then I to have left Jill Brent in Watertown Brent for a him started, come I week loosing back Watertown. came back at until school and was I dropped thought only way Christmas time and the kids off. them.... I if this was the always something Christmas has been that I’ve have them I would do that.

Case Details

Case Name: Veeder v. Kennedy

Court Name: South Dakota Supreme Court

Date Published: Feb 24, 1999

Citation: 589 N.W.2d 610

Docket Number: None

Court Abbreviation: S.D.