Summary
In Schneider, the plaintiff stated claims for alienation of affections and criminal conversation, and requested that both claims be submitted to the jury.
Summary of this case from Henry v. Riverwood Clinic, S.C.Opinion
No. 289.
Argued April 11, 1968. —
Decided May 7, 1968.
APPEAL from orders of the circuit court for Milwaukee county: ROBERT M. CURLEY, Circuit Judge. Reversed and remanded.
For the appellant the cause was submitted on the brief of Alvin H. Eisenberg, attorney, and Edwin A. Star of counsel, both of Milwaukee.
For the respondent there was a brief by John J. McLario, attorney, and Ronald G. Bernoski of counsel, both of Menomonee Falls, and oral argument by Mr. Bernoski.
On May 6, 1964, plaintiff commenced an action for alienation of affections and criminal conversation against the defendant. While not stating each as a separate action, the complaint clearly alleged alienation of affections and criminal conversation.
On October 26, 1966, trial of this action began before a jury, Judge WILLIAM R. MOSER presiding, in the circuit court for Milwaukee county. In his opening statement, plaintiff's counsel specifically referred to the two causes of action.
On October 28, 1966, the court denied plaintiff's request for instructions and questions in the special verdict covering both causes of action. Defendant's counsel objected to the motion, requesting that the case go to the jury on the issue of alienation of affections only. The court upheld defendant's objection, submitting the case to the jury as an action for alienation of affections only.
The jury found that the defendant did alienate, by his conduct, the affection of plaintiff's wife from her husband, but that such conduct was not the controlling cause of the alienation of the wife's affection from her husband. On February 3, 1967, judgment was entered on the jury's verdict.
On April 6, 1967, plaintiff commenced an action in criminal conversation against the defendant in the circuit court for Milwaukee county. The defendant entered a plea in bar to the complaint asserting that the February 3, 1967, judgment was res adjudicata to the cause of action in criminal conversation.
On June 27, 1967, the trial court, Judge ROBERT M. CURLEY, presiding, sustained the plea in bar and dismissed the complaint. On September 19, 1967, the trial court affirmed the above order and dismissed plaintiff's motion to review. Plaintiff appeals the order of dismissal and the order denying review.
Alienation of affections and criminal conversation are closely related causes of action, usually brought to court on a single complaint. However, they are separate causes of action. The elements required to prove alienation of affections are (1) wrongful conduct on the part of the defendant, (2) plaintiff's loss of affection or consortium of the spouse, (3) causal connection between such conduct and such loss. Such wrongful conduct must be the controlling cause. The elements of a cause of action for criminal conversation are (1) an actual marriage between the spouses, and (2) sexual intercourse between the defendant and the guilty spouse during coverture.
Kundert v. Johnson (1955), 268 Wis. 484, 485, 68 N.W.2d 42.
Maahs v. Schultz (1932), 207 Wis. 624, 633, 242 N.W. 195.
Woodman v. Goodrich (1940), 234 Wis. 565, 567, 291 N.W. 768.
These two are twin causes of action, most often seen together, but they are not identical twins, certainly not Siamese twins. Adulterous intercourse is not a necessary element in an action for alienation of affections. Alienation of affections is not a necessary element for an action for criminal conversation, but goes only to the matter of damages. Each is a separate cause of action, each governed by a different statute of limitations, each clearly separable and distinguishable from the other.
Id.
The jury finding in the first case of "wrongful conduct" falls short of a finding of adulterous relations, a required element in the second case. This issue must be held not to have been adjudicated in the first action. The judgment in the first case is not conclusive as to this issue because it was not in fact adjudicated. The doctrine of res adjudicata and the related doctrine of collateral estoppel do not apply because the jury in the first case was not called upon to find and did not in fact find the existence of an essential element of a cause of action for criminal conversation.
". . . in a subsequent litigation between the same parties or their privies upon a different cause of action, the judgment is only conclusive as to those issues which were in fact adjudicated." Grunert v. Spalding (1899), 104 Wis. 193, 213, 214, 80 N.W. 589. See also Estate of Hertzfeld (1960), 10 Wis.2d 333, 338, 102 N.W.2d 838.
It is particularly true that a prior judgment is not res adjudicata or an estoppel bar as to any matter which the court in the earlier case expressly refused to submit to the jury and expressly directed should be litigated in another forum or in another action. In this case, the judge in the first case stated:
30A Am. Jur., Judgments, p. 421, sec. 374.
"The Court is of the opinion that the denial of the motions during trial on the part of the Court by no way denies plaintiff's counsel from pursuing a cause of action for criminal conversation since the Court denies every motion concerning a cause of action relating to criminal conversation."
It is clear that the judge in the first case could have submitted the cause of action for criminal conversation. It may well be as clear that he should have. We must be governed by what he did do, not what he could have done or should have done.
Defendant strongly contends that plaintiff should have appealed the ruling of the judge in the first case refusing to submit the issue of adultery and the cause of action for criminal conversation to the jury. However, in that case, he destroyed the platform on which he now seeks to stand. Plaintiff in the first case did seek instructions and questions in the special verdict as to criminal conversation as well as on alienation of affections. It was defendant's counsel who objected, stating then:
"We also object to that motion, and for the record, we would just like to call to the attention of the Court that this matter was at pre-trial and we believed that this was an action for alienation of affections only, and we object to such a motion."
It was on his objection that the judge in the first action sent the case to the jury as an alienation of affections action only. What he helped to rend asunder he cannot now successfully contend should have been left together.
By the Court. — Orders reversed and the cause remanded for further proceedings.