[90 Ariz. 263] Marvin Johnson, Phoenix, for appellant.
Harry Stewart, Jr., and Trew, Woodford & Dodd, Phoenix, for appellee.
STRUCKMEYER, Chief Justice.
This is an appeal from a judgment wherein plaintiff recovered $15,000 compensatory damages and $7,500 punitive damages based on a claim that the defendant had alienated the affections of plaintiff's husband.
The plaintiff-appellee and one Robert Bruce were married on December 4, 1954, at Salome, Arizona. Plaintiff at the time was seventeen and Bruce was thirty-five or thirty-six years of age. In January of 1955 plaintiff and Bruce moved to California. There is a dispute as to the length of time they resided there, however, it is undisputed that plaintiff returned to the home of her parents in Phoenix prior to the birth of her first child on December 1, 1955. Bruce returned to Phoenix in November. In January or February of 1956, plaintiff, Bruce, and the child returned to California. They continued living together until June or July of that year. Plaintiff then, together with the child, because of marital difficulties and differences, returned to the home of her parents. Shortly thereafter Bruce returned to Phoenix but did not live with the plaintiff.
On August 20, 1956, plaintiff and Bruce signed what was designated a 'separation agreement's and thereafter continued to live separate and apart, although he visited plaintiff and the child at the home of plaintiff's parents. A second child was born in November of 1957. Plaintiff testified that she and Bruce continued to have sexual relations although they maintained separate living quarters. Bruce denied having sexual relations with plaintiff during the period when they were living apart.
[90 Ariz. 264] The defendant-appellant, Ruth McNelis first became acquainted with Bruce in January of 1957, having met him at the restaurant where he was employed. She was at that time married to one James Mc,Nelis. After this meeting the defendant and Bruce saw each other socially and in April of 1957 they met in California and lived together for approximately five days in a motel where they registered as husband and wife. Before returning to Arizona the defendant informed her husband that she intended to secure a divorce. After defendant and Bruce returned to Arizona they continued to see each other. The plaintiff
obtained a divorce on July 30, 1957. The defendant and James McNelis were divorced on September 20, 1957. Thereafter, the defendant and Bruce were married in Michigan on January 14, 1958.
Plaintiff commenced this action against the defendant for alienation of affections on September 10, 1957. At the conclusion of the trial on October 23, 1958, a verdict was returned in favor of the plaintiff awarding her fifteen thousand dollars compensatory damages and seventy-five hundred dollars punitive damages. Judgment thereon was entered in favor of the plaintiff. Plaintiff then caused a writ of garnishment to be issued directed to James McNelis, the former husband of defendant. Defendant made motions for a new trial and to quash the writ of garnishment. It is from the denial of these motions as well as certain alleged errors committed during the course of trial that this appeal stems.
Defendant's first and third assignments of error are closely related and will be considered together. Defendant assigns as error the failure of the trial court to direct a verdict in her favor at the close of plaintiff's case and at the conclusion of all the evidence for the reason that all the evidence conclusively proved that the affections of the plaintiff's husband were transferred to defendant after plaintiff and her husband had separated. Defendant also assigns as error that the lower court erred in failing to direct a verdict in her favor for the reason that as a matter of law an alienation of affections suit cannot arise from facts occurring after the husband and wife entered into a formal separation.
We agree with defendant that the evidence does show that there was no alienation of affections until after plaintiff and Robert Bruce separated. Plaintiff and her husband had been living separate and apart at least from a period commencing in August of 1956. It is undisputed that defendant did not meet or become acquainted with plaintiff's husband until sometime in January, 1957. However, we do not agree that a cause of action for alienation of affections cannot arise after the husband and wife are separated or after they have entered a formal separation.
[90 Ariz. 265] The gist of an action for alienation of affections is founded upon facts which support an injured spouse's claim that there has been an unprivileged, intentional interference with the legally protected marital rights of the aggrieved spouse. The legally protected marital interests include the affections, society and companionship of the other spouse, sexual relations with the exclusive enjoyment thereof, and in the case of a wife they include support by the husband. Restatement of the Law, Torts § 683, Comment b. Numerous cases have recognized that such an action can be maintained notwithstanding the fact that the party maintaining the action was living separate and apart from his or her spouse when the conduct causing such alienation occurred. Koenig v. Corcoran, 199 F.2d 37 (9th Circuit 1952); Annarina v. Boland, 136 Md. 365, 111 A. 84; Dey v. Dey, 94 N.J.L. 342, 110 A. 703; Bradbury v. Brooks, 83 Colo. 133, 257 P. 359; Ruble v. Ruble, 203 Minn. 399, 281 N.W. 529; Booth v. Krouse, 78 Ohio App. 461, 65 N.E.2d 89; Restatement of the Law, Torts § 683, Comment d. The underlying rationale in support of such a suit, where the alleged alienation occurred at a time when the husband and wife were separated, is that there is always a possibility of reconcilitation which the law encourages and that one who by his or her wrongful conduct unlawfully interferes with and prevents this possibility of reconciliation should be held accountable.
Defendant in support of her contention that a formal separation coupled with actual physical separation should constitute an absolute defense relies on the case of Fleming v. Fisk, 66 App.D.C. 350, 87 F.2d 747 (1936). There the trial court directed a verdict in favor of the defendant which was affirmed on appeal. On the facts that case can be distinguished since the alienation of affections occurred during a period after the filing for divorce by the plaintiff. In the present case the evidence discloses that the alleged conduct causing the alienation occurred
subsequent to the separation but prior to commencement of divorce preceedings. The law encourages a reconciliation of estranged parties when such possibility exists and therefore we hold that a suit for alienation of affections can be maintained notwithstanding the acts causing the alleged alienation occurred while the husband and wife were formally separated. It is significant to note that the acts complained of in this case began within six months after plaintiff and her then husband formally separated. We cannot say as a matter of law that this period of time is of such duration as to rule out any possibility of reconciliation.
Defendant assigns as error the failure of the lower court to direct a verdict in her favor for the reason that plaintiff failed to show by a preponderance of evidence that at the time of defendant's acts [90 Ariz. 266] plaintiff and Bruce had any affection for each other or that there was any hope of reconciliation. A review of the testimony of the parties and various witnesses discloses sharp disputes, conflicts and contradictions throughout the trial. Two of the ultimate facts on which there was a sharp dispute were whether any affection existed between plaintiff and Bruce and whether there way any hope of reconciliation during the period of defendant's conduct. It is the consistent holding of this Court that where the sufficiency of the evidence to sustain the jury's verdict is questioned on appeal every conflict in the evidence and every reasonable inference therefrom will be resolved in favor of sustaining the verdict and judgment. Sanders v. Beckwith, 79 Ariz. 67, 283 P.2d 235; Stallcup v. Coscarart, 79 Ariz. 42, 282 P.2d 791; Curlee v. Morris, 72 Ariz. 125, 231 P.2d 752; Valley Nat. Bank v. Witter, 58 Ariz. 491, 121 P.2d 414.
After reviewing the transcript of testimony and exhibits admitted in evidence, we find that plaintiff did introduce evidence which, if believed by the jury, would sustain findings that some affection did exist and that there was some hope of reconciliation. As to the question of existence of affection, plaintiff testified on direct examination:
'Q. Now, so that we get this straight, from the period in September of 1956, until approximately June 1957, you and your husband did not actually live under the same roof, is that correct? A. That's right.
'Q. You did, however, live together as man and wife at various times and various places and continued to have intercourse with each other during that period, is that correct? A. I won't say various places, but--Yes.
'Q. Well, at your home and when he was here in Phoenix during that period of time, is that right? A. That's right.'
As to the possibility of reconciliation plaintiff testified on direct examination:
'Q. I think we had finally gotten to where you and your husband had planned to go to California. Now if you would go ahead and relate what those plans were. A. Well, Bob was going to go first. He was going to look for a job ...