Lomax v. Haglund

California Court of Appeal Jun 7, 1939 No. Civ. No. 11800Published

Before: Doran

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Holding. The court held that the complaint sufficiently stated a cause of action for criminal conversation in the absence of a demurrer and that the jury's damage award was not so excessive as to suggest passion, prejudice, or corruption.

Issues

Whether the complaint sufficiently alleged a cause of action for criminal conversation in the absence of a demurrer.
Whether the damages awarded by the jury for alienation of affections and criminal conversation were excessive.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Although that portion of paragraph III to which appellant objects could have been more appropriately set forth, nevertheless, in the absence of a demurrer, the allegations are sufficient.”

“It is established law that before a judgment can be reversed because excessive, it must appear “so plainly and outrageously excessive as to suggest, at the first blush, passion or prejudice or corruption on the part of the jury”.”

DORAN, J. Defendant appeals from the judgment in favor of plaintiff, upon two causes of action, the first of which was for alienation of the affections of plaintiff’s wife, for which the jury returned a verdict in the sum of $5,000, the second for alleged criminal conversation, for which a verdict was returned in the sum of $20,000.

Appellants contends that the court erred in admitting evidence as to the second cause of action of the amended complaint, which in part alleged as follows:

“II.

“That on or about the 16th day of December, 1936, and again on or about the 24th day of December, 1936, . . . and on or about the 9th day of March, 1937, and again on or about the 11th day of March, 1937, and again on or about the 35th day of March, 1937, and again on or about the 23rd day ■of March, 1937, . . . the defendant on or about all of said dates and places unlawfully contriving and intending to injure the plaintiff and to deprive him of the comfort, society, aid and assistance of his said wife, wickedly, willfully and [235]maliciously debauched and carnally knew the said Dorothy Lomax without the privity or consent of the plaintiff.

“III

“That by means of the premises, and to wit, on or about the 4th day of April, 1937, the affection which the said Dorothy Lomax theretofore had for the plaintiff was alienated and destroyed and the plaintiff was deprived of the comfort, society, aid and assistance which he otherwise would have had from his said wife, and has suffered great distress of body and mind to his great damage in the sum of . . . ”

It is urged by appellant .in this connection that the allegations relating to criminal conversation in paragraph III as above set forth do not seek damages except for alienation of affection and that no reference is made therein to the criminal conversation as an element of financial detriment.

Respondent, on the other hand, contends as follows: 11 There was no demurrer filed, either general or special, and while we do not concede for a moment that the insertion in the charging clause, the fact that plaintiff lost his wife’s affection by the adulteries enumerated, is improper, nevertheless, that portion thereof could be omitted and a complete cause of action stated by merely enumerating the adulteries and claiming damages therefor.”

Lomax v. Haglund

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