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September 21, 1993


Appeal from the Circuit Court of the St. Louis County. Hon. William Corrigan.

Clifford H. Ahrens, Judge, Stanley A. Grimm, Judge, concurs. Carl R. Gaertner, Judge, concurs.

The opinion of the court was delivered by: Ahrens

Defendant appeals from a judgment in favor of plaintiff entered pursuant to a jury verdict on claims for alienation of affections and criminal conversation. The jury awarded actual damages of $71,000.00 and punitive damages of $100,000.00 on the alienation of affections count and $10,000.00 actual damages and $40,000.00 punitive damages on the criminal conversation count.

We affirm.

Plaintiff and his ex-wife, Mary Kathleen (Kathy), were married in 1969 and had four children. During the early 1980's, they became acquainted with defendant and his family. Beginning in or about July, 1983, defendant and Kathy began seeing one another. The relationship included regular meetings which sometimes included sexual intercourse. During the affair, Kathy became pregnant by defendant in January, 1984, and in August, 1984. The first pregnancy ended in an abortion, which was paid for by defendant. The second pregnancy ended in a miscarriage, although another abortion had been planned. The affair continued without plaintiff's knowledge until his discovery of love letters from defendant to Kathy in February, 1985. Despite this discovery, plaintiff continued to care for his wife and tried to preserve their marriage. Kathy filed an action for dissolution of marriage. Plaintiff and Kathy were divorced on October 28, 1987. Defendant and Kathy married in November, 1987.

Defendant's first point asserts that the trial court erred in its verdict directing instruction on the count for alienation of affections, because it misdirected the jury on the issue of intent. There is no M.A.I. verdict directing instruction on alienation of affections, so a not-in-M.A.I. instruction was used. The verdict directing instruction given by the trial court is as follows:

Your verdict must be for the Plaintiff, John Kirk Miller, if you believe:

First, Plaintiff John Kirk Miller was married to Mary Kathleen Miller, and

Second, Defendant Timothy Neill, committed acts which caused Plaintiff, John Kirk Miller, to lose the society, comfort, affection, and assistance of Mary Kathleen Miller, and

Third, Defendant Timothy Neill acted intentionally and

Fourth, Plaintiff, John Kirk Miller, was thereby damaged.

"A not-in-M.A.I. instruction authorizing a verdict must require a jury to find all the ultimate facts necessary to sustain the verdict except those which the parties have unmistakenly conceded." Frederic v. O'Keefe, 820 S.W.2d 107 (Mo. App. 1991). "Alienation of affections is an intentional tort, and the elements are defendant's wrongful conduct, plaintiff's loss of the affections or consortium of his spouse, and the causal connection between such conduct of defendant and the loss by plaintiff." Gibson v. Frowein, 400 S.W.2d 418, 421 (Mo. banc 1966).

Defendant argues the above instruction is inadequate since it does not require a finding that the acts which caused the alienation are wrongful, thereby allowing the jury to hold defendant liable for any act committed intentionally which caused plaintiff to lose the society and comfort of his wife, without regard to wrongfulness. We disagree. The Missouri Supreme Court has stated "that an action of alienation of affections is based on inherently wrongful acts of the defendant intentionally done which have the natural and probable consequence of alienating the affections of the spouse of the plaintiff, and which in the particular case had that result." Id. at 421 (emphasis ours). This Court, with regard to alienation of affections actions, has referred to a defendant's conduct which is "inherently wrong and seductive." Kraus v. Kraus, 693 S.W.2d 869, 873 (Mo. App 1985). In Kraus, we approved a verdict directing instruction which did not specifically require a finding that defendant's conduct must have been wrongful. The verdict director in this alienation of affections action is not defective for failure to include the word 'wrongful' to describe defendant's actions. The verdict director given in this case deviates from that approved in Kraus. *fn1 However, we may reverse a case for instructional error only when we find that the instructions contain an error of substance with substantial potential for prejudicial effect. Id. at 873. We find no prejudicial error resulting from this deviation.

Defendant further argues that the verdict director is in error because it allows the jury to award damages for the doing of acts which were not intended to cause an alienation of Kathy Miller's affections. A defendant need not have intended to cause an alienation of affections between a plaintiff and spouse, however. The defendant need only have intended to do the acts which resulted in the loss of consortium between spouses. "In an action for alienation of affections, a person is presumed to intend the natural and probable consequences of [his/her] voluntary acts." Gibson, 400 S.W.2d at 421. We find that verdict ...

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