Thomas v. Siddiqui

869 S.W.2d 740, 1994 Mo. LEXIS 6, 1994 WL 17462

• Court: Supreme Court of Missouri
• Decided: January 25, 1994
• Docket: 75837
• Status: Published

Opinions

BENTON, Judge.

On June 12, 1990, James L. Thomas sued Jawed H. Siddiqui, alleging criminal conversation and alienation of affection. The trial court directed a plaintiffs verdict on the claim of criminal conversation; the jury then assessed $1 in actual damages and $50,000 in punitive damages. The circuit judge later granted a judgment notwithstanding the ver-diet, finding punitive damages not submissi-ble. A defendant’s verdict was returned on alienation of affection.

Both parties initially appealed. This Court granted transfer prior to the court of appeals’ opinion. Rule 83.06. This Court later dismissed Thomas’ appeal for procedural reasons, thus leaving stand the defendant’s judgment on alienation of affection and the court’s nullification of punitive damages for criminal conversation. This Court now reverses the judgment on actual damages and the underlying cause of action.

In the last two decades, state courts across America, citing myriad reasons, have been abolishing the common law tort of criminal conversation. Neal v. Neal, 1993 WL 228394 (Idaho App.1993); Hoye v. Hoye, 824 S.W.2d 422 (Ky.1992); Saunders v. Alford, 607 So.2d 1214 (Miss.1992); Norton v. MacFarlane, 818 P.2d 8 (Ut.1991); Feldman v. Feldman, 125 N.H. 102, 480 A.2d 34 (1984); Irwin v. Coluccio, 32 Wash.App. 510, 648 P.2d 458 (1982); Hunt v. Hunt, 309 N.W.2d 818 (S.D.1981); Kline v. Ansell, 287 Md. 585, 414 A.2d 929 (1980); Bearbower v. Merry, 266 N.W.2d 128 (Iowa 1978); Fadgen v. Lenkner, 469 Pa. 272, 365 A.2d 147 (1976); W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 124, at 929-30 (5th ed. 1984). Contra Vacek v. Ames, 221 Neb. 333, 377 N.W.2d 86 (1985).

Missouri courts have long recognized the tort of criminal conversation. Comte v. Blessing, 381 S.W.2d 780 (Mo.1964); Sandler v. Schmidt, 263 S.W.2d 35 (Mo.1953), rev’d on other grounds, Gibson v. Frowein, 400 S.W.2d 418, 422 (Mo. banc 1966); Allison v. Mildred, 245 S.W.2d 86 (Mo.1952); Lewellen v. Haynie, 287 S.W. 634 (Mo.1926); Frederic v. O’Keefe, 820 S.W.2d 107 (Mo.App.1991); Reiter v. Reiter, 804 S.W.2d 797 (Mo.App. 1990); Muchisky v. Kornegay, 741 S.W.2d 43 (Mo.App.1987); Bogart v. Jack, 727 S.W.2d 447 (Mo.App.1987); Smith v. Whalen, 613 S.W.2d 868 (Mo.App.1981); Reynolds v. Jobes, 565 S.W.2d 690 (Mo.App.1978); Moranz v. Schiller, 525 S.W.2d 785 (Mo.App.1975); Lewellen v. Haynie, 25 S.W.2d 499 (Mo.App.1930); Scheffler v. Robinson, 159 Mo.App. 527, 141 S.W. 485 (1911); Mills v. Taylor, 85 Mo.App. 111 (Mo.App.1900). To recover under criminal conversation, the plaintiff must prove two elements: 1) an actual marriage; and 2) that the defendant had sexual intercourse with the plaintiffs spouse. Lewellen, 287 S.W. at 638; Smith, 613 S.W.2d at 870. The only defense to such an action is consent or connivance by the plaintiff spouse. See, e.g., Comte, 381 S.W.2d at 788.

Citing two statutes, Thomas contends that criminal conversation is a statutorily-approved cause of action. Section 510.263.5 RSMo Supp.1987 lists eight causes of action — including criminal conversation — where a court is not required to credit a defendant for advance payment of punitive damages. Section 516.140 RSMo 1986 provides a two-year statute of limitations for nine causes of action, including criminal conversation. Contrary to Thomas’ argument, these statutes do not make criminal conversation a statutory tort. These statutes merely acknowledge the existence of a common law action for criminal conversation. See Hunt, 309 N.W.2d at 820. Criminal conversation has always been a common law tort in Missouri. Bogart, 727 S.W.2d at 450.

This Court has the authority to abolish common law torts. Townsend v. Townsend, 708 S.W.2d 646, 649-50 (Mo. banc 1986). “With the disappearance of the reason the thing disappears; when the reason for a rule of law fails, the rule fails.” State ex inf. Norman v. Ellis, 325 Mo. 154, 28 S.W.2d 363, 369 (1930).

A possible reason for the tort of criminal conversation is to compensate the plaintiff for injuries caused by the adulterous defendant. Tinker v. Colwell, 193 U.S. 473, 481, 24 S.Ct. 505, 506-07, 48 L.Ed. 754 (1904). However, another remedy exists to compensate the plaintiff spouse: Conduct during the marriage — including adultery — is a factor that a court considers in dividing marital property after dissolution. Section 452.330.-1(b) RSMo Supp.1988; D.K.L. v. L.C.L., 764 S.W.2d 664, 667 (Mo.App.1988). Also, the tort of alienation of affection — governed by a different set of legal rules — has traditionally provided the plaintiff spouse with a possibility of compensation. Gibson, 400 S.W.2d at ; Frederic, 820 S.W.2d at 108; Reynolds, 565 S.W.2d at 697-98.

Another purpose of criminal conversation might be to punish and deter the defendant. Mills, 85 Mo.App. at 115, 270 S.W.2d 724. From the earliest days of statehood, Missouri punished adultery as a crime. See, e.g., Crimes and Misdemeanors, § 77, Laws of Missouri 1825; Section 563.150 RSMo 1969 (repealed). Criminal conversation is the civil counterpart to the criminal offense of adultery. Karchner v. Mumie, 398 Pa. 13, 156 A.2d 537, 538 (1959). In Missouri, the General Assembly repealed the crime of adultery in 1979. Laws Mo.1977, S.B. No. 60, p. 662. Decriminalizing the act constituting criminal conversation evidenced society’s intent no longer to punish adultery. See Hunt, 309 N.W.2d at 822; Bearbower, 266 N.W.2d at 135; Fadgen, 365 A.2d at 151 n. 7.

Thomas contends that abolishing the tort of criminal conversation encourages adultery. To the extent that laws can discourage adultery, there are other disincentives. Adultery — along with a belief that it is intolerable to live with the adulterous spouse — is a ground for dissolution. Section )52.320.2 RSMo 1986. As noted, adultery may result in a smaller split of property after a dissolution. Section )52.330.1()) RSMo Supp.1988; D.K.L., 764 S.W.2d at 667. Finally, adultery can bar a spouse from certain inheritance rights. Section 474.140 RSMo 1986.

This Court now abolishes the tort of criminal conversation in Missouri and reverses the judgment as to criminal conversation.

This ease is remanded for proceedings consistent with this opinion.

HOLSTEIN, THOMAS and LIMBAUGH, JJ., concur. PRICE, J., concurs in separate opinion filed. COVINGTON, C.J., concurs in opinion of PRICE, J. ROBERTSON, J., dissents in separate opinion filed.