Brown v. Vogt

538 P.2d 362, 272 Or. 482, 1975 Ore. LEXIS 570

• Court: Oregon Supreme Court
• Decided: July 17, 1975
• Status: Published

Opinions

TONGUE, J.

This is an action for criminal conversation. The jury returned a verdict in favor of the plaintiff in the sum of $100,000.

① Defendant appeals from the resulting judgment.

No useful purpose would be served by a summary of the facts and it is not contended that plaintiff failed to prove facts sufficient to establish the tort of criminal conversation. Indeed, defendant admitted intercourse with plaintiff’s wife.

Defendant contends, however, that the trial court erred in failing to sustain his demurrer to the complaint upon the ground that the tort of criminal conversation should be abolished. In support of that position defendant contends that the tort of criminal conversation is based upon adulterous conduct and that at the time of the “incidents” involved in this case the crime of adultery had been abolished by the 1971 Oregon Legislature,② with the result that “an essential element” of that tort is missing in this case. Defendant contends that, as a result, there is no longer any “rational basis” for the tort of criminal conversation in Oregon and that it should be abolished by the decision of this court.

In overruling defendant’s demurrer the trial court reasoned, to the contrary, that by repealing the criminal penalty for adultery the Oregon legislature “intended to do no more than to decriminalize the behavior and did not intend thereby to deprive a person of the cause of action in tort for criminal conversation.”

Subsequent to the trial of this case and the argument of this appeal the 1975 Oregon Legislature abolished the tort of criminal conversation, as well as that of alienation of affections, but in doing so expressly provided that “Sections 1 and 2 of this Act [abolishing these two torts] shall not apply to any actions commenced before the effective date of this Act.”③ It also appears that the 1973 Oregon Legislature declined to enact a proposed bill that would have abolished both torts at that time.④

Under these circumstances, we are of the opinion that this court should abide by the action taken by the Oregon legislature which has, in effect, preserved the tort of criminal, conversation during the period of the “incidents” involved in this case, although abolishing it prospectively after the effective date of the 1975 statute.

Defendant also assigns as error the failure of the trial court to strike allegations of plaintiff’s complaint asking for punitive damages upon the ground that “the justification for punitive damages, detriment of violations of significant societal interests, is no longer applicable to the tort of criminal conversation.”

Although this court has not previously passed directly upon this question in an action for criminal conversation, it has held that punitive damages may be recovered in an action for alienation of affections. Coates v. Slusher, 109 Or 612, 631, 222 P 311 (1924).⑤ Also, according to an annotation in 31 ALR2d 713, 717-18, 725 (1953), it has been generally held in the United States that punitive damages are recoverable in actions for criminal conversation, as well as in actions for alienation of affections.

The tort of criminal conversation involves many of the same elements as that of alienation of affections insofar as the question of punitive damages is concerned. Both torts have, ip effect, been preserved by the legislature during the period of time involved in this case, although abolished for the purposes of all future cases. It follows that at the time of the trial of this case the trial court was required to submit to the jury not only plaintiff’s cause of action for criminal conversation, but also the question whether plaintiff was entitled to an award of punitive damages.

It is true that this court has always had the power to reverse its previous decisions and to abolish both the tort of criminal conversation and the award of punitive damages in such cases. Under these circumstances, however, we think it inappropriate in this case and at this time to reconsider the question whether an award of punitive damages is proper in an action for either alienation of affections or criminal conversation.

Defendant also assigns as error the failure of the court to sustain his objection that “anything that happens after [“the time of filing petition for divorce”] * * * has [no] relevance as far as the claim in this case.”

As previously stated, this complaint included a cause of action for alienation of affections, as well as one for criminal conversation. In Berkshire v. Harem, 181 Or 42, 60-61, 178 P2d 133 (1947), we held that conduct by a defendant occurring even after the filing of an action for alienation of affections “if otherwise relevant, is admissible.”

It follows, in our opinion, that in an action for alienation of affections conduct by a defendant which is relevant to the issue of whether the affection of the plaintiff’s wife has in fact been alienated is admissible even though occurring after the filing of a complaint for divorce by her.

In this case plaintiff’s former wife was asked on cross-examination, over objection, whether she had used defendant’s BankAmericard for purchases and had signed as “Mrs. Jack Vogt.” That incident took place after the filing of her complaint for divorce.⑥ In our opinion, that evidence had sufficient probative value so as to be relevant to the issues raised in plaintiff’s cause of action for alienation of affections.⑦

Defendant’s final assignment of error is that the trial court erred in failing to strike allegations that defendant did “seduce and entice” plaintiff’s wife to have sexual intercourse with him and that his conduct “in seducing” her was willful, wanton and malicious. Under the facts of this case, including conduct admitted by the defendant and by plaintiff’s wife, the failure of the trial court to strike these allegations was not prejudicial error.

The judgment of the trial court is affirmed.

Plaintiff’s complaint also alleged a separate cause of action for alienation of affections. The jury returned a verdict in favor of the defendant on that cause of action.

Oregon Laws 1971, ch 743.

House Bill 2616, Oregon Laws 1975, ch 562, as adopted by the 1975 Oregon Legislature, becomes effective September 13, 1975.

Senate Bill 153, 1973. See also Foley v. Pittenger, 264 Or 310, 503 P2d 476 (1972), reinstating a verdict awarding damages for criminal conversation.

The allowance of punitive damages in Coates v. Slusher, 109 Or 612, 631, 222 P 311 (1924), was cited with approval in Van Lom v. Schneiderman, 187 Or 89, 108, 210 P2d 461 (1949).

Defendant also complains of evidence of another incident after the filing of the complaint for divorce that was not made the subject of a proper assignment of error. See Rule 6.18 of the Rules of Procedure of the Oregon Supreme Court requiring that “The assignment of error must be specific and must set out verbatim the pertinent portions of the record.”

Defendant also complains that such evidence constituted an improper variance between pleading and proof, but no such contention was made at the time of trial. Brooke et ux v. Amuchastegui et ux, 226 Or 335, 339-40, 360 P2d 275 (1961).