Lockhart v. Loosen

OP ALA, Justice,

dissenting.

¶ 1 Concluding that the wife’s claim against her husband’s infection-bearing paramour is an actionable tort, the court reverses the nisi prius dismissal order and remands the cause for further proceedings. I recede from today’s pronouncement.

I

¶ 2 THE TRIAL JUDGE’S DECISION FOR THE DEFENDANT SHOULD BE AFFIRMED ON A THEORY NOT URGED AT NISI PRIUS

.¶ 3 Every trial judge’s decision comes to a court of review clothed with a presumption of correctness. If supported by law and evidence, the nisi prius judgment will be affirmed even if it was based on an incorrect theory and neither party tendered below an appropriate analysis of the applicable law. 1 Criminal conversation is the true anchor of today’s claim. 2 As that common-law tort no longer is remediable, the nisi prius decision to dismiss the wife’s action should be affirmed. 76 O.S.1991 § 8.1. 3

II

¶ 4 THE HISTORICAL LINK BETWEEN CRIMINAL CONVERSATION AND SEDUCTION

¶ 5 Criminal conversation and seduction are bound, one to the other, by their common *1083 antecedent in the writ of trespass vi et ar-mis. A recognition of this historical link no doubt led this court to hold in Lynn v. Shauf 4 that by the provisions of 76 O.S.1991 § 8.1 5 criminal conversation — though not mentioned there eo nomine — nonetheless stands abrogated along with seduction. Both of these torts owe their genesis to the early common-law remedy for enticing away a servant and for depriving the master of a property interest in the consequential loss of the servant’s services. 6

*1082 From and after the effective date of this act, the alienation of the affections of a spouse of sound mind and legal age or seduction of any person of sound mind and legal age is hereby abolished as a civil cause of action in this state. [Emphasis added.]

*1083 ¶6 All actions for tortious interference with a person’s marriage relation lay in trespass vi et armis. The wife was treated as her husband’s servant; a loss of her services, when occasioned by a third party’s enticement, was recoverable. Much like a servant, the wife was regarded as her husband’s personal property.

¶ 7 Two actions developed to make marriage interference remediable at common law. 7 The first of these, called enticement, lay for inducing a wife to leave her husband. Enticement later underwent a metamorphosis into present-day alienation of affections. 8 The second of these torts was called seduction. The latter, in which no element of physical separation of the husband from his wife was necessary, required an adulterous relationship between the defendant and the plaintiffs spouse. 9 The remedy’s function was (a) to vindicate the husband’s property rights in his wife’s person, (b) to punish the defendant for placing the legitimacy of progeny in doubt, and (c) to redress the act of defiling plaintiffs marriage and family honor. It is seduction that evolved into modern-day criminal conversation. 10

Ill

¶ 8 STATUTORY ABROGATION OF CRIMINAL CONVERSATION IS ALL-INCLUSIVE

¶ 9 The gravamen of this wife’s claim is harm from venereal disease (genital herpes) alleged to have been contracted from the husband who in turn came to be infected through criminal conversation with the paramour-defendant. The wife’s contagious condition is but an element of her damage from the defendant’s criminal conversation. Because that delict stands abrogated by § 8.1, all the elements of damage that would have been recoverable by the abolished claim, if it were still remediable, are now damnum abs-que injuria. 11

*1084 IV

¶ 10 THE CONCUREE’S ASSAULT ON THIS DISSENT’S LEGAL SOUNDNESS

¶ 11 The coneuree’s analysis, while morally appealing, is legally unpersuasive. Plaintiff seeks to recover ex delicto. Her damage consists of a venereal disease. It was transmitted by her husband who had allegedly contracted it from the defendant. The defendant’s adulterous intercourse with plaintiffs husband — the claimed source of plaintiffs infection — clearly is not a tort for which the plaintiff may seek redress. The injurious consequence of something that is not actionable is damnum absque injuria.

¶ 12 Criminal conversation consists at common law of sexual intercourse with a married person other than the actor’s spouse. It is remediable against the third party by an action of the wronged spouse. All acts of intercourse that fall under this rubric have-been placed by statute dehors the bounds of delictual culpability. The § 8.1 abrogation is entirely unqualified and all-inclusive. Embraced within its immunity purview are all disease carriers who acted sans or with scienter. 12 The eoncuree pretends that the liability recognized in this case is not within the immunized range of § 8.1 because here the court’s tort protects only from disease spread rather than against the invasion of a marital bed. The distinction is patently specious as well as ludicrous. The spread of venereal disease is accomplished by copulation, and all sexual intercourse condemned by criminal conversation is statutorily immunized from tort responsibility, whether infection follows or not and regardless of the actor’s scienter. Nothing more need really be said to repel the concuree’s attack on this dissent’s legal soundness and to show that the only legitimate solution to the moral dilemma posed by the problem at hand must, if at all, come through an amendment of § 8.1 that would create an exception for disease-transmitting criminal conversation.

¶ 13 The concuree’s other apologia also is flawed because it impermissibly dichotomizes a single and indivisible class of statutorily abrogated criminal conversation tort. Without a scintilla of textual support in the controlling statute, 76 O.S.1991 § 8.1, treated as abolished are only those acts of criminal conversation by which no venereal disease came to be spread. Preserved from legal extinction is that statutorily immunized copulation in which the actor’s knowledge of his (or her) capacity to transmit a disease can be shown. 13 This approach pretends to do away with intercourse as the tort’s gravamen and to substitute the offending sexual partner’s scienter as a tort completely severable from criminal conversation. 14 No matter what verbal camouflage may be used, intercourse remains the gravamen of the tort crafted for this case by today’s opinion. That is how the disease is said to have passed from the defendant through plaintiffs husband to the plaintiff. Equally irrefutable under the scenario tendered by this' case is that the intercourse alleged as the source of plaintiffs infection is her husband’s copulation with the defendant — an act of criminal conversation that clearly lies within the statutory abrogation and hence stands dehors the bounds of legislatively recognized delictual culpability. So long as the terms of § 8.1 remain unamended, there is no room here for creating judicially a legal remedy that would give this wronged spouse her moral due. Today’s largesse in the name of the common law plainly *1085 offends the § 8.1 mandate. 15

¶ 14 More simply put, in this lawsuit against the husband’s sexual partner plaintiffs harm from her genital herpes is nothing more or less than damage inflicted -without a legal wrong. Transmission of her venereal disease did not occur without copulation, and the infection-bearing intercourse is immunized from tort liability. I hence cannot join the view that criminal conversation may be actionable when it is shown that the offending spouse was infected by an actor who knowingly transmitted the disease by intercourse.

V

SUMMARY

¶ 15 Today’s opinion makes criminal conversation actionable, once again, if the intercourse on which it is rested ultimately infected the wronged spouse with a sexually transmitted disease. Legislative abrogation does not confine the delict’s abolition range to but noninfectious extramarital affairs. The line drawn by the court in an effort to preserve from extinction some remnant of the broadly abolished liability is absolutely sans warrant in the unequivocal text of the abrogating statute, 76 O.S.1991 § 8.1.

¶ 16 Once legislatively rejected, a common-law norm may not be revitalized by judicial fiat. 16 The provisions of § 8.1 effectively extinguished all civil liability that was borne at common law by an offending spouse’s sexual partner to the wronged spouse for every injurious consequence of extramarital copulation which, under the rubric of criminal conversation, was treated as tortious. Although this spouse’s claim clearly falls within the range of statutorily abrogated civil accountability, the § 8.1 core of tort immunity is rather narrow. Its range extends to no person other than the third-party intruder upon the marriage and covers only that actor’s breached obligation once owed to the nonparticipating spouse. The immunity’s sweep is simply coextensive with the law’s present recognition that no civilly enforceable duty of sexual abstinence runs any longer to the wronged spouse from an invading stranger to the marriage. But let there be no mistake about the immunity’s outer limit. The § 8.1 mandate for removal of some delicts that are anchored on the marriage status from the catalogue of cognizable common-law torts poses absolutely no impediment to an action by any individual, married or single, for harm inflicted by the defendant’s willful or negligent transmission of a disease through sexual intercourse with the plaintiff. In short, the statute has erased a form of status-based liability and, for assessment of sex-connected tort responsibility, the law’s focus has turned on individual person-to-person harm-dealing acts. 17

¶ 17 I can neither join today’s pronouncement nor rejoice at its birth. The court should affirm the nisi prius order that dismissed this claim for lack of actionable quality.

. This court will affirm a correct judgment on any applicable theory. Bivins v. State ex rel. Oklahoma Memorial Hosp., 1996 OK 5 , 917 P.2d 456, 465 ; Matter of Estate of Maheras, 1995 OK 40 , 897 P.2d 268 , 272 n. 5; Wright v. Grove Sun Newspaper Co., Inc., 1994 OK 37 , 873 P.2d 983, 993 ; Messenger v. Messenger, 1992 OK 27 , 827 P.2d 865, 874 ; Willis v. Nowata Land and Cattle Co., 1989 OK 169 , 789 P.2d 1282, 1286-87 ; Davidson v. Gregory, 1989 OK 87 , 780 P.2d 679 , 685 n. 23; Benham v. Keller, 1983 OK 68 , 673 P.2d 152, 154 ; Utica Nat’l Bank and Trust v. Assoc. Prod., 1980 OK 172 , 622 P.2d 1061, 1066 ; Thompson v. Inman, Okl., 482 P.2d 927, 937 (1971); Holloway v. Ward, 84 Okl. 247 , 203 P. 217,219 (1921).

. Criminal conversation at common law is a husband’s action in tort for harm occasioned by a third party’s intercourse with the husband’s wife. Kline v. Ansell, 287 Md. 585 , 414 A.2d 929, 930 (1980); Turner v. Heavrin, 182 Ky. 65 , 206 S.W. 23, 23-27 (1918); W. Prosser, The Law of Torts § 124, pgs. 915-30 (5th ed. 1981); Jacob Lipp-man, The Breakdown of Consortium, 30 Col. L.Rev. 651, 654-660 (1930). By modem law criminal conversation became actionable at the wife's suit as well. Russo v. Sutton, 310 S.C. 200 , 422 S.E.2d 750, 752 (1992); Rivers v. Rivers, 292 S.C. 21 , 354 S.E.2d 784, 789 (App.1987); Kline, supra 414 A.2d at 930-31 ; Vaughn v. Blackburn, 431 S.W.2d 887, 889 (Ky.App.1968); Turner, supra at 27 ; Nolin v. Pearson, 191 Mass. 283 , 77 N.E. 890, 890-893 (1906); W. Prosser, supra, § 124 at 916; Lippman, supra at 662-68.

.The terms of 76 O.S.1991 § 8.1 provide:

. Lynn v. Shaw, 1980 OK 179 , 620 P.2d 899, 902 . According to the teaching of Lynn, seduction and criminal conversation are so intertwined that seduction’s abrogation by the provisions of 76 O.S. 1991 § 8.1 also abolishes criminal conversation. The latter is clearly incorporated within the term seduction.

. For the provisions of § 8.1 see supra note 3.

. See Annot., Alienation of Affections of Child or Parent, 60 A.L.R.3d 931 , 934 (1974). The early common-law tort remedies for harm to the spousal status are an offshoot from the master’s action against third parties for enticing away his servants and depriving him of their services. W. Prosser, supra note 2, § 124 at 915-16. The provisions of 76 O.S.1991 § 8, which are declaratory of the common law on this very subject, are:

The rights of personal relation forbid:

1. The abduction of a husband from his wife, a wife from her husband or of a parent from his child.

2. The abduction or enticement of a child from a parent, or from a guardian entitled to its custody, or of a servant from his master.

3. An injury to a servant.

. VI. Prosser, supra note 2.

. Lynn v. Shaw, supra note 4 ; see also Bladen v. First Presbyterian Church of Sallisaw, 1993 OK 105 , 857 P.2d 789, 796 .

. Criminal conversation consists of exactly the same elements as seduction. Adultery is the sine qua non of criminal conversation. The former term, used more often in criminal law, may be regarded in the tort context as the functional equivalent of the latter. Lynn v. Shaw, supra note 4 at 90Í.

. Lynn v. Shaw, supra note 4 at 903.

. For an explanation that damage from venereal disease, contracted through sexual intercourse, may be recovered in an action for seduction as the "proximate consequence” of actionable copulation, see Abrahams v. Kidney, 104 Mass. 222 , 6 Am.Rep. 220 (1870).

Damnum absque injuria means damage without a legal (actionable) wrong. Houck v. Hold Oil Corp., 1993 OK 166 , 867 P.2d 451 , 462 n. 7; St. Paul Fire & Marine Ins. Co. v. Getty Oil Co., 1989 OK 139 , 782 P.2d 915, 920 ; Davis Oil Co. v. Cloud, 1986 OK 73 , 766 P.2d 1347, 1349 .

. Guilty knowledge is known as scienter. State ex rel. Oklahoma Bar Ass’n v. Eakin, 1995 OK 1166 , 914 P.2d 644 , 650 n. 22; Dayton Hudson Corp. v. Amer. Mut. Lia. Ins. Co., 1980 OK 193 , 621 P.2d 1155, 1161 .

. The court describes the requisite knowledge an infecting sexual partner must have with respect to his (or her) infectious-capacity as that which a person “knew or should reasonably have known.”

.Scienter, as used by the court, is but a gauge for assessing the delictual culpability in terms of the actor’s degree of care or, if infliction was willful, then in terms of the offender’s state of mind. It only qualifies the act of transmitting a *1085 disease in terms of the actor’s negligence or willfulness.

. For an explanation of the common law’s rank that is subordinate to legislation, see infra note 16.

. By the mandate of 12 O.S.1991 § 2 the common law remains in full force unless explicitly modified or abrogated by statute. The hierarchy for the state legal system’s three sources of law ascribes to the common law the lowest rank— after the State’s constitution and its legislative enactments. Wright v. Grove Sun Newspaper Co., Inc., 1994 OK 37 , 873 P.2d 983, 987 ; Tate v. Browning-Ferris, Inc., 1992 OK 72 , 833 P.2d 1218, 1225-26 .

.It is this analysis that led me to join the other dissent’s view of this case.