Parker v. Bruner

686 S.W.2d 483

• Court: Missouri Court of Appeals
• Decided: January 15, 1985
• Docket: 13313
• Status: Published

Opinions

PREWITT, Judge.

Based upon a claim of seduction, plaintiff received a verdict for twenty-five thousand dollars actual damages and fifty thousand dollars punitive damages. Judgment was entered accordingly and defendant appeals.

We first mention defendant’s contention that the trial court erred in overruling his motion for judgment notwithstanding the verdict because the action of seduction violates his constitutional rights. This point is set out in full below.¹ This contention was first raised in defendant’s after trial motions.

To raise and preserve a federal or state constitutional question for appellate review, it must be raised at the first available opportunity. State v. Tatum, 653 S.W.2d 241, 243 (Mo.App.1983); Kansas City v. Howe, 416 S.W.2d 683, 686 (Mo. App.1967). It is obvious that this contention could have been raised earlier by a motion directed at the petition and during the trial. As this point was not preserved for review, it is denied.

The next contention of defendant that we discuss is his assertion that the evidence was insufficient to support the cause of action “because there was no evidence that Appellant had made any promise or other inducement of marriage, other false promises, artifices or solicitations; nor that Appellant made any promise, statement, or other inducement regarding marriage, knowing it to be false; nor that Respondent relied upon any such promise or inducement in consenting to sexual intercourse with Appellant; nor that Respondent surrendered her chastity because of any promise made by Appellant.”

In reviewing a claim that the evidence is insufficient to support the verdict, we consider the evidence and reasonable inferences therefrom most favorable to plaintiff. Ogle v. Webb, 623 S.W.2d 582, 583-584 (Mo.App.1981).

There are two elements of seduction which defendant contends were lacking in proof. These elements are described in Breece v. Jett, 556 S.W.2d 696, 707 (Mo. App.1977), as (1) conduct of the defendant consisting of “solicitations, importunities, misrepresentations, knowingly false promises or artifices, including a false promise to marry for the purpose of seduction”, and (2) intercourse occurring “because of the false solicitations, importunities, false promises or false promise to marry”. See also Greco v. Anderson, 615 S.W.2d 429, 431 (Mo.App.1980); Piggott v. Miller, 557 S.W.2d 692, 695 (Mo.App.1977).

Viewed in the light most favorable to plaintiff, we find that the evidence was sufficient to supply these elements.

At the time they met plaintiff was 23 years of age and defendant 34. She was a nursing student and he a practicing dentist. Defendant had previously been married and divorced. Plaintiff testified that she had not previously engaged in sexual intercourse.

They met at an apartment swimming pool in Caruthersville, Missouri on August 18,1979. He had an apartment there. She lived in Caruthersville and was visiting a friend who lived in the apartment house. They started dating the next day and saw each other every weekend for several months. She was attending college at Murray State University in Murray, Kentucky, and would either come home on weekends or he would go there or they would go somewhere else.

They took several trips together between their meeting and November 21, 1979, when their first sexual intercourse took place at his apartment. Plaintiff testified that on these trips she resisted his sexual advances and either stayed in a separate room or in a separate bed in the same room. She did so because she had religious beliefs that she should not have sexual intercourse until she was married.

Plaintiff said she believed that because of defendant’s prior marriage it was difficult for him to have a relationship without sex. She told him she wanted to wait until she was married, and she suggested that he might date others but he said “I don’t want anybody else, Alice. I want you, I want a life with you and that’s all I want.”

Plaintiff testified that he frequently told her he loved her, and wanted to express his feelings through making love to her. Defendant testified that he did not love her and never told her that. She said he often talked about “[w]hen we get married” and what they might do “[i]n our marriage”. She said that defendant told her “he did want me to marry him.”

After they had dated several weeks he was “very persistent” and they had arguments over her refusal to consent to sexual intercourse. When he told her that he did not want to have sexual relations with any other woman “he looked like he was gonna cry. He, he was real upset. I’ve never seen him that upset that much, seemed like he cared that much.”

She said she finally consented to have sexual relations with him “after all that time and all that fighting. I’m not sure exactly how it happened, I just know it happened, and I, and I know that I, that I loved him and I know that I believed that he loved me and I know that I felt that we were gonna have a life together, otherwise I wouldn’t of.”

After two pregnancies, the first terminated by a voluntary abortion, their relationship ended when plaintiff refused to follow defendant’s insistence that she have a second abortion.

A jury could find that in order to convince her to engage in intercourse with him he falsely said that he loved her and that they would be married when he did not intend to marry her. There was evidence that they went so far as to obtain a marriage license after the first time she became pregnant and he indicated that he would marry her and then declined. However, that does not establish that his promises were not falsely made for the purpose of inducing her to engage in intercourse a considerable time previously.

Defendant’s discussion of their future marriage, when he admittedly did not love her, creates a strong inference that he never intended to marry her and combined with his false statements about loving her indicates that he was making the statements to induce her to have intercourse. She testified that she took these statements to be an indication that they would be married and that he loved her and in reliance upon them, she engaged in intercourse with him.

The jury obviously rejected defendant’s testimony that they first had intercourse on September 9, 1979, and that before it he had only told her that he “enjoyed being with her.” He testified that she was the aggressor but he did “[n]ot strongly” resist.

Although the plaintiffs evidence, if believed, may indicate naiveness on the part of plaintiff, whether she believed the things said was for the jury. They may have determined that this was a situation where a college student with little worldly experience and no previous serious romantic involvement or sexual experience was misled and seduced by a sexually experienced older professional man. There was evidence that he was making $285,000 annually and was able to buy her gifts and take her on expensive trips. His attention and statements may have been such that would prevent an inexperienced woman such as plaintiff from comprehending his true objective.

Defendant’s contention that plaintiff did not make a submissible ease for the jury’s consideration is denied. Compare the evidence here with that in Boedges v. Dinges, 428 S.W.2d 930 (Mo.App.1968).

We next discuss defendant’s contention that the trial court erred in allowing plaintiff’s attorney to read excerpts from defendant’s deposition. Defendant raises several objections to the use of the deposition, none of which have any validity. The full point is set out below.²

The deposition of a party may be used by an adverse party for any purpose. Rule 57.07(a)(2); City of Town and Country v. St. Louis County, 657 S.W.2d 598, 608 (Mo. banc 1983); Teachenor v. DePriest, 600 S.W.2d 122, 125 (Mo.App.1980).

In respect to admissions against interest the deposition of a party is like any other evidence. A statement made in a deposition relevant to the issues may be admitted against the deponent as admissions against interest in the same or another action to which he is a party, even though he is present in court and able to testify, or has testified. Teachenor v. DePriest, supra, 600 S.W.2d at 125. There is no requirement that notice be given to defendant’s counsel that plaintiff’s attorney would read admissions from it.

If the admissions were made, whether the deposition was filed would not make any difference. Filing it could bear on the proof showing that the statements were made, but here that defendant said them was not questioned.

This point is denied.

We next discuss defendant’s contention that the trial court erred in overruling his motion in limine. The point contends this allowed plaintiff to present evidence of “continued sexual relations between the parties on a regular basis for over a period of more than two years after the first act of intercourse and the alleged seduction, and also allowed the Respondent to present evidence of her abortion, a subsequent pregnancy, the birth of a child almost two years subsequent to the alleged seduction, pre-natal expenses incurred by Respondent and many other facts and circumstances which were not relevant to the alleged seduction”. The full point is set out below.³ After the motion was overruled no objections were made as the evidence was presented.

It could be questioned whether this point is before us as the overruling of a motion in limine cannot by itself be reversible error, and after the denial of a motion in limine a timely objection is required to preserve the point for appellate review. Peters v. Henskaw, 640 S.W.2d 197, 201-202 (Mo.App.1982).

However, due to an indication that there may have been a “standing” objection to this evidence, apparently based on the motion in limine, we discuss this point further.

The motion in limine sought to limit the evidence presented by the plaintiff “to the first act of intercourse between the parties”. The body of the motion is set out in full below.⁴ As the point indicates and as counsel confirms in oral argument, the contention regarding this evidence is not the same as that presented to the trial court by the motion. In oral argument before us defendant’s counsel admitted that evidence of the parties’ relationship following the initial act of intercourse would have been admissible on the issue of damages until the “intervening” acts of the abortion and defendant telling plaintiff he would not marry her.

It is obvious then that the motion was sought to prevent at least some evidence that defendant now acknowledges was admissible. Defendant has thus admitted that the motion was improper as presented and should have been denied. The argument now presented is that after the abortion and defendant’s refusal to marry plaintiff, no further evidence of their relationship nor of the second pregnancy and birth of the child should have been allowed. Defendant now says that it was the intervening cause of the abortion and the refusal to marry that terminated the evidence. This is a different argument than made before the trial court. A party cannot change his theory of objection on appeal and have it preserved for review. “[N]o allegations of error shall be considered in any civil appeal from a jury tried case except such as have been presented to or expressly decided by the trial court.” Rule 84.13(a). See also Walker v. Woolbright Motors, Inc., 591 S.W.2d 289, 291 (Mo.App.1979).

Even if the contentions now made are essentially the same as presented to the trial court, there still could not be error in the ruling complained of. The trial court did not rule that the evidence now complained of in this point was admissible. By overruling the motion it indicated that some evidence of the parties’ acts following the initial intercourse may be admissible. The point contends that the trial court erred in overruling the motion in limine. Defendant now admits that the motion was not correct as some of the evidence it sought to prevent was admissible, so there could be no error in overruling it. This point is denied.

We next discuss defendant’s contention that the trial court erred in allowing plaintiffs child to remain in the courtroom and in not granting relief in other particulars regarding the child. Defendant’s full point is set out below.⁵

We conclude that the court’s rulings in regard to the child were not an abuse of discretion. In Rehg v. Giancola, 391 S.W.2d 934, 937 (Mo.App.1965), the court said:

“In this state in criminal actions where a defendant’s liberty, or even his life, is at stake, it has been held that the exhibition of an infant is within the sound discretion of the court, [citing cases] If such is permitted in criminal cases it can hardly be said that the discretion of the trial court would not be extended to the showing of a child in a civil case.”

Evidence regarding the child came in without objection. Seeing the child thereafter would not be so prejudicial as to constitute an abuse of discretion. This contention is denied.

Defendant asserts in his remaining point that an instructional error was committed. This allegation was not mentioned in defendant’s motion for new trial so it is not before us. Rule 70.03; Rule 84.13; Romines v. Donald Maggi, Inc., 636 S.W.2d 130, 132 (Mo.App.1982).

The judgment is affirmed.⁶

CROW, P.J., and HOGAN and MAUS, JJ., concur. GREENE, C.J., dissents and files Dissenting Opinion.

1 . THE TRIAL COURT ERRED in overruling Appellant’s motion for judgment notwithstanding verdict on the basis that the cause of action of seduction is violative of Appellant's rights to equal protection and due process under the 5th and 14th Amendments to the United States Constitution because the action of seduction, as defined by Missouri Law and as applied to Appellant in this case, is unconstitutional and unfairly and unreasonably discriminates against Appellant because of his sex, and places a different burden on males than upon females with respect to the tort of seduction, and further, because the tort of seduction, under Missouri law, may only be committed by a male upon a female and, therefore, constitutes gender-based and unlawful discrimination against Appellant because of his sex.

2 . THE TRIAL COURT ERRED in overruling Appellant’s objections to counsel for Respondent reading selected excerpts from the Appellant’s pre-trial deposition to the jury because said deposition had not been properly filed with the Court pursuant to Missouri Rule of Civil Procedure 57.07(d)(4), and because no notice had been given to the Appellant’s counsel that said deposition was to be used as evidence and Appellant’s counsel was therefore unable to prepare for the said deposition being read by making the proper pre-trial objection to inadmissible testimony, and because the deposition had been taken pursuant to the Respondent’s original petition, count one for paternity, and therefore, the deposition was irrelevant to Respondent’s amended petition for seduction and was immaterial, and the reading of the deposition was further improper because the Defendant was present in the courtroom at the time the deposition was read to the jury and said readings were not admissions against interest, nor used for impeachment, but were selective readings of portions of the deposition which included leading questions and hearsay testimony.

3 . THE TRIAL COURT ERRED in overruling Appellant’s motion In Limine to limit the Respondent's evidence to the facts and circumstances reasonably related to the first sexual intercourse between the parties because the tort of seduction is not a continuing tort, and the Court’s ruling allowed the Respondent to present evidence of continued sexual relations between the parties on a regular basis for over a period of more than two years after the first act of intercourse and the alleged seduction, and also allowed the Respondent to present evidence of her abortion, a subsequent pregnancy, the birth of a child almost two years subsequent to the alleged seduction, pre-natal expenses incurred by Respondent and many other facts and circumstances which were not relevant to the alleged seduction and which were not proximately caused by the alleged act of seduction, and which were so remote in time and unconnected from the original alleged act of seduction as to be wholly improper, inflammatory and highly prejudicial none of which were relevant to the issue before the Court.

4 . Comes now the defendant and moves the Court to limit the evidence presented by the Plaintiff herein to the first act of intercourse between the parties, which according to Plaintiffs Petition occurred November 21, 1979. That this is a suit for seduction and that the material evidence would only have to do with the first act of intercourse, which according to Plaintiffs Petition occurred November 21, 1979, which would be the seduction, and any additional or other acts of intercourse between the parties would be totally immaterial and made only to prejudice or inflame the jury.

5 . THE TRIAL COURT ERRED by allowing the Respondent’s infant child to remain in the courtroom during the trial and by denying Appellant’s motion to exclude the child and Appellant’s motion for a mistrial after the Respondent brought the infant child to the counsel table with her, in front of the jury, and while the Judge was out of the courtroom during which time Respondent displayed and played with the infant child for some time in front of the jury; and the trial Court further erred in permitting Respondent's attorney to go out of the courtroom and bring the Respondent’s infant child in the presence of the jury and confront the Appellant with the infant child with the question, "Isn’t this your child? because the question of paternity and the fact that there was a child born more than two years after the alleged act of seduction occurred was irrelevant to Respondent’s seduction claim, and the display of the child in the manner described had the effect of inflaming and prejudicing the jury against Appellant and engendering sympathy toward the respondent and the child. Further, the trial Court erred in not granting a mistrial for the reason that the question of paternity was admitted by Appellant and the action for paternity by Respondent was dismissed prior to the trial and was, therefore, not at issue.

6 . This footnote was added by the author of the opinion after its initial circulation and the voting on it.

The dissent requests that this matter be transferred to the supreme court for two reasons, reexamination of the existing law and because this opinion is in conflict with Breece v. Jett, supra, 556 S.W.2d 696, and Greco v. Anderson, supra, 615 S.W.2d 429, as those decisions require proof of seduction by clear, cogent and convincing evidence.

Transfer for the purpose of reexamining the existing law requires an order by a majority of the participating judges. Mo. Const. Art. V, § 10; Rule 83.02. A majority has not ordered transfer here.

Greco does not mention the standard of proof necessary in a seduction action. Breece states that seduction is a species of fraud and the evidence to support it must be clear, cogent and convincing. 556 S.W.2d at 707. That is not the general rule as to fraud. Crawford v. Smith, 470 S.W.2d 529, 531-532 (Mo. banc 1971). See also In the Matter of the Estate of Mitchell, 610 S.W.2d 681, 687-688 (Mo.App.1980). The practicality of such a standard in a seduction case can be questioned.

If such actions are to be maintained, and it is not for this court to make that determination, that standard could create an insurmountable burden. The intercourse and such acts as show that the female consented because of misrepresentation are not likely to occur before others and knowledge of them is most often limited to the participants.

The statement in Breece is dictum and may not be in conflict with this opinion. However, as transfer because the majority opinion is contrary to a previous decision of an appellate court of this state is the prerogative of a dissenting judge, see Mo. Const. Art. V, § 10, Rule 83.01, whether transfer is proper on that ground is not for the other participating judges to decide. On that basis this case is being transferred as requested in the dissent.