¶1dissenting.
¶2I would reverse our earlier decisions and hold that the tort of criminal conversation is judicially abolished. The probable basis of the tort “lay in the proprietary interest of the husband in the body and services of his wife.” Lippman, The Breakdown of Consortium, 30 Colum L Rev 651, 658 (1930). The old English courts created the tort of criminal conversation at a time when a wife was regarded as a servant or a chattel of her husband. That kind of relationship disappeared long before the women’s liberation movement commenced and the tort should have vanished with it.
¶3*488I find nothing in the 1975 legislation which would hinder our ability to judicially abolish the tort. Chapter 562, Oregon Laws 1975. The courts created the tort and the courts can abolish it. I do not interpret the 1975 law to statutorily sanction the judicially created tort in actions commenced before the effective date of the statute. I believe a more reasonable interpretation is that the legislature abolished the tort as to actions commenced after the effective date of the Act and that the status of pending actions remains under judicial control.
¶4Assuming that the plaintiff can maintain a cause of action for criminal conversation I also dissent from that part of majority decision which holds that the jury could assess punitive damages.
¶5In Noe v. Kaiser Foundation Hosp., 248 Or 420, 425, 435 P2d 306 (1967), we stated the general rule for determining when punitive damages can be awarded:
“Punitive damages can only be justified on the theory of deterrent. … It is only in those instances where the violation of societal interests is sufficiently great and of a kind that sanctions would tend to prevent, that the use of punitive damages is proper. …”
¶6The legislature has decided that society has no great interest in enabling a husband to obtain money from a man who had had intercourse with the husband’s willing wife. Because this conduct will no longer be legally wrongful no reason exists to deter it.
¶7The majority appears to justify affirming the award of punitive damages on two grounds.
¶8The first is stare decisis. The majority reasons that in 1924 this court allowed an award of punitive damages in an alienation of affections case, alienation of affections involves many of the same elements as criminal conversation, therefore, the application of *489the rule of stare decisis requires that punitive damages be awardable in this case.
¶9In my opinion this does not follow. The legislature has now decided that alienation of affections and criminal conversation are not legally wrongful conduct. Because punitive damages are awarded to deter potential wrongdoers, there is no reason for the award when there is no potentially wrongful conduct to deter.
¶10As a second ground for their opinion, the majority reasons that because at the time of trial it was not error to permit the issue of punitive damages to go to the jury, we cannot reverse even though the law has been changed subsequent to the ruling of the trial court but before decision on appeal. Fortunately, we have not followed such a rigid rule. A change in the law or in the circumstances occurring between trial and the decision on appeal may require reversal of the trial court although its ruling was not in error when made.
¶11In American Insurers v. Bessonette, 235 Or 507, 384 P2d 223, 385 P2d 759 (1963), the trial court held that the defendant building contractors were not liable for damages to the tenant’s property due to a lack of privity between the contractors and the tenant.
¶12In deciding the case on appeal we stated:
“Decision in this case is governed by the recent case of Strandholm v. General Construction Co., decided June 12, 1963, 235 Or 145, 382 P2d 843. Obviously, the trial judge did not have the advantage of the decision in Strandholmwhen he decided this case, nor did counsel at the time the case was submitted here.”
“… The Strandholmcase holds that there was a duty in spite of the lack of privity, so this case must be reversed. …” 235 Or at 509.
¶13*490Accord: Port of Portland v. Reeder, 203 Or 369, 407, 280 P2d 324 (1955); Von Poppenheim v. Port. Boxing Com., 241 Or 603, 407 P2d 853 (1965); and Gabel v. Time Insurance, 257 Or 241, 478 P2d 368 (1970).