(concurring in part and dissenting in part).
I concur with the majority opinion except as to the dismissal of Paul’s causes of action against Jody for fraud and intentional infliction of emotional distress.
The trial court determined that there were no genuine issues of material fact to be decided against Jody and granted her motion for summary judgment on all causes of action. Obviously, there are genuine issues of material fact concerning intentional infliction of emotional distress and fraud and deceit. Therefore, the trial court erred and the majority affirms that error. Bego v. Gordon, 407 N.W.2d 801 (S.D.1987); Trapp v. Madera Pacific Inc., 390 N.W.2d 558 (S.D.1986); Wilson v. Great Northern Ry. Co., 83 S.D. 207, 157 N.W.2d 19 (1968).
After becoming pregnant with Tom’s child, Jody seduced Paul and convinced him that he was the father of her unborn child. This led to Paul’s public humiliation and embarrassment and clearly raised sufficient jury questions as to fraud and deceit and intentional infliction of emotional distress. This is not seriously disputed in the majority opinion. Despite this, the majority opinion states:
We are not unsympathetic for Paul because of the embarrassment and humiliation he suffered. Any attempts to redress this wrong, however, may do more social damage than if the law leaves it alone. We hold that the fraud and deceit alleged by Paul is not actionable because public policy would not be served by authorizing the recovery of damages under the circumstances of the present case. Summary judgment in favor of Jody, therefore, was appropriate.*
*765It is not necessary for the majority opinion to “authorize the recovery of damages” under these circumstances. The legislature already performed that task by enacting SDCL 20-10-1 (liability for damage caused by deceit) and SDCL 20-10-2 (acts constituting deceit). Neither statute prohibits a person from recovering damages for deceit from either a spouse or an ex-spouse. In view of the statute permitting recovery and the absence of any statutory prohibition, how can the majority deny recovery on an unexpressed public policy? If recovery is denied, what is the beginning and what is the end of the policy or rule? The majority is clearly overstepping its bounds and usurping for itself the rightful power and tasks of the legislature.
In this context, it is interesting to note that the trial court granted Paul recovery against Tom for medical costs and expenses in the amount of $2,893.85, plus interest of $650.00, and granted Tom indemnity against Jody for one-half of that amount. Although neither Tom nor Jody appealed from that judgment, it is interesting to note that the majority’s concern over “interfamilial warfare” was not sufficient to prevent that recovery also and the indemnity based thereon.
MILLER, J., joins in this special writing and I am authorized to so state.
The majority opinion attempts to use the same "public policy" rationale to affirm the denial of Paul's cause of action against Jody for intentional infliction of emotional distress. In doing so, it makes two errors. First, it mistakenly relies on the case of Richard P. v. Superior Court (Gerald B.), 202 Cal.App.3d 1089, 249 Cal.Rptr. 246 (1 Dist.1988) which is clearly distinguishable. Secondly, the majority opinion states:
*765Furthermore, the law of this state already provides a remedy for this type of claim in the form of an action against the paramour for alienation of affections.
Obviously, this quoted language has no bearing on Paul’s claim against Jody.