James R. Morford (of Morford, Bennethum, Marvel & Cooch), of Wilmington, and Ernest V. Keith, of Dover, for plaintiff.
H. Albert Young and Henry van der Goes (of Young & Wood), of Wilmington, for defendant.
The complaint in this case alleges:
[47 Del. 521] 'On or about May 10, 1952 and on divers other days and dates both prior and subsequent thereto, in the City of Dover, Kent County and State of Delaware, the defendant wrongfully, wickedly, wantonly and maliciously debauched and carnally knew Ann Marie Bullock, then being the wife of plaintiff, with the intention thereby to injure the plaintiff and to deprive him of the comfort, fellowship, society, aid and assistance of his said wife, and thereby did alienate, wean away and wholly destroy the affection of the said Ann Marie Bullock for the plaintiff, her said husband; whereby the plaintiff has wholly and irrevocably lost and been deprived of the comfort, fellowship, society, aid and assistance of his said wife.
'Wherefore, plaintiff demands judgment against the defendant for One Hundred Thousand Dollars ($100,000) compensatory damages and One Hundred Thousand Dollars ($100,000) punitive or exemplary damages, plus costs of suit.'
The defendant moves to dismiss the complaint on the ground that a 'cause of action based upon alleged criminal conversations has been improperly joined with a cause of action based upon alienation of affection.' Assuming for the purpose of this motion that there is such joinder, it is not improper. It is recognized that criminal conversation and alienation of affections are two distinct torts and that separate actions or counts are required in some jurisdictions. See 42 C.J.S., Husband and Wife, § 607, p. 320; 27 Am.Jur. p. 173; Darnell v. McNichols, 22 Tenn.App. 287, 122 S.W.2d 808; Hutchinson v. Taylor, 129 Cal.App. 369, 18 P.2d 722. Under Rule 8(e)(2) of this Court , however, a plaintiff may set forth alternative claims or legal [47 Del. 522] theories in the same count of his complaint and, under Rule 18, the plaintiff is entitled to join in his complaint, alternately, as many claims as he may have against the defendant. The motion to dismiss the complaint for misjoinder is without merit and will be denied.
The defendant moves to dismiss the complaint, or in the alternative, requests a more definite statement, upon the ground that the complaint is so vague and ambiguous that he is unable to frame a responsive pleading to it. In support of this motion, the defendant assigns three reasons:
1. The defendant asserts that the plaintiff 'fails to set forth with any certainty or clarity the nature and cause of his action, namely, whether it is based upon criminal conversation or alienation of affection.'
As has been indicated, the complaint could be considered to be proper if, in one count, it asserted claims based upon both criminal conversation and alienation of affection. I agree with the plaintiff, however, that the complaint clearly identifies the action as one based upon criminal conversation. The complaint contains the three elements usually found in a tort case. (a) The wrongful act: i. e., adultery; (b) the injurious consequences: i. e., loss of affections; and (c) the demand for relief: i. e., judgment for money. It seems quite clear that the gravamen of the action is the adultery and that the alienation of affections thereby resulting is matter of aggravation of damages.
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2. The defendant asserts that the complaint lacks certainty and clarity because it does not state: (a) the acts and dates of alienation; (b) the manner in which the plaintiff has been deprived of the aid and assistance of his wife; or (c) the manner in which the defendant induced the criminal conversations and alienation.
If the complaint contained these facts it would no longer be a 'short and plain statement of the claim' as is required by Rule 8(a). It would become prolix with allegations of evidence. [47 Del. 523] The plaintiff will not be required to plead evidentiary facts and the defendant must exercise his rights under the discovery Rules in order to ascertain such of these facts as he may be entitled to obtain from the plaintiff. This ruling is not in conflict with Weiner v. Markel, Del.Super., 92 A.2d 706. In that case, the action was for alienation of affections and criminal conversation was not averred. The complaint did not contain the dates of the acts complained of and the Court required the plaintiff to furnish a more definite statement as to such dates. In the instant case, the wrongful acts are the alleged criminal conversations. The defendant is entitled to have set forth in the complaint the dates of the wrongful acts but not the dates of the consequences thereof.
3. The defendant asserts that the complaint is defective in that it 'fails to state the dates or places [of adultery] prior to May 10, 1952, as being within ...