determining that a putative father’s action against his estranged wife for fraud and deceit arising from her conduct in intentionally failing to tell him that child born in wedlock was not his could not be maintained as matter of public policy as such matters were “not one[s] in which it is appropriate for the courts to intervene”
How later courts described this case
- determining that a putative father’s action against his estranged wife for fraud and deceit arising from her conduct in intentionally failing to tell him that child born in wedlock was not his could not be maintained as matter of public policy as such matters were “not one[s] in which it is appropriate for the courts to intervene”
- finding that the torts of intentional infliction of emotional distress, fraud, and deceit should be unavailable as a matter of public policy when predicated on conduct that leads to a marriage dissolution, noting it is inappropriate for the courts to intervene in these situations
- The husband could not maintain an action for the intentional infliction of emotional distress based upon his wife's extramarital affair. Such an action does not lie, as a matter of public policy, when it is predicated upon conduct that leads to a divorce.
- barring tort of intentional infliction of emotional distress if predicated on conduct which leads to dissolution of marriage
Written by the judges who cited it.
The opinion
HENDERSON, Justice
(concurring in part, dissenting in part).
First, I concur in the majority opinion’s expression, as buttressed by decisional law in this state, that the doctrine of inter-spousal immunity in tort actions has been abolished in this state. Therefore, each tort must be individually assessed as to its merit. Aus v. Carper, 82 S.D. 568 , 151 N.W.2d 611 (1967). In this case, Solomon, in his finest hour, would have difficulty in assessing the propriety of the cause of actions pleaded. Here, we have a love triangle which was formed in Sioux Falls, our largest city. Social disorder and pregnancy ensued. Grief and sorrow spew into the courts. Now, lacking the wisdom of Solomon, we must adjudicate to determine a just result.
Secondly, it appears that this is a second tort action in which this particular lawyer has shotgunned a pleading with multiple causes of action, some of which are in total conflict with one another in theory, and both within the same appellate time frame. French v. Dell Rapids Hosp., 432 N.W.2d 285 (S.D.1988).
Third, the cause of action for alienation of affections is alive in South Dakota per the special concurrence in Hunt v. Hunt, 309 N.W.2d 818, 822 (S.D.1981). As the writer of said decision, which was joined in by then Chief Justice Roger Wollman, I would have abolished the alienation of affections action in this state which is of common-law origin and exists independent of any statute. Hunt, 309 N.W.2d at 820 . Criminal conversation, per Hunt , was abolished in this state as a tort. We noted in Hunt that adultery in South Dakota was statutorily decriminalized. It would appear that the creativity of the pleader in this case, on behalf of plaintiff, seeks to perhaps skirt the holding in Hunt , insofar as the criminal conversation tort abolition is concerned.
*764 Fourth, I concur, and for the reasons stated by the majority opinion in its holdings, on tortious interference and fraud and deceit.
Fifth, on alienation of affections, for all of the reasons set forth in my writing in Hunt , I respectfully dissent to the majority writing.
This leaves, so far as this Justice is concerned, one available tort action for the plaintiff-appellant to pursue, and that is the tort of intentional infliction of emotional distress. Under my theory, there would be no duality of recovery or overlapping of damages if this case were tried strictly upon intentional infliction of emotional distress. However, I would restrict a survival of action in Paul (husband) against Kimball (lover); thereby, I adopt the public policy arguments insofar as these arguments apply regarding Paul (husband) suing Jody (wife). Hence, I would hold that Paul could sue, under this tort theory, Kimball (lover) who is not within the family. In my opinion, where man and wife are involved in a marriage relationship, there could always exist a tort for intentional infliction of emotional distress where they had an argument. It could be over the family dog, who takes out the garbage, who forgot to pay the bill, or who is spending too much money. In other words, the law should not provide a basis for interfamilial warfare between husbands and wives where our courts would be flooded with litigation. Kimball (lover) was not the husband of Jody. He was the interloper. I am satisfied that a showing has been made that the conduct appears to be outrageous and with an intent to inflict severe emotional distress; furthermore, that it was the intention of the acts to perpetrate and cause great injury upon plaintiff. From these actions, an extreme emotional response was born in the mind and body of plaintiff-appellant. Surely, it is a question of fact under the guidelines of Wilson v. Great N. Ry. Co., 83 S.D. 207, 212 , 157 N.W.2d 19, 21 (1968).
Therefore, I respectfully concur in part and dissent in part.