Clemons v. Seba

• Decision Date: 08 June 1908
• Citation: 111 S.W. 522,131 Mo.App. 378
• Parties: MARY FRANCES CLEMONS, Respondent, v. WILLIAM EZRA SEBA, Appellant
• Court: Kansas Court of Appeals

111 S.W. 522

131 Mo.App. 378

MARY FRANCES CLEMONS, Respondent, v. WILLIAM EZRA SEBA, Appellant

Court of Appeals of Missouri, Kansas City

June 8, 1908

Appeal from Gasconade Circuit Court.--Hon. R. Steele Ryors, Judge.

REVERSED AND REMANDED.

Breuer & Hensley for appellant.

(1) The evidence offered by defendant, to show that prior to the engagement and prior to the seduction as alleged by plaintiff in her petition, the plaintiff had been guilty of acts of lewdness and unchastity with other men than defendant, should have been admitted for the purpose of mitigating the damages. Cole v. Holliday, 4 Mo.App. 94; State v Patterson, 88 Mo. 89. (2) The court should have given the following instructions offered by the defendant to wit Although the jury may find and believe from the evidence that there was promise of marriage between plaintiff and defendant as alleged in plaintiff's petition, yet if they further believe and find from the evidence that on the 4th day of April, 1907, plaintiff gave birth to a mature female child and that defendant is not the father of said child, then they will find for the defendant.

C. G Baxter, for respondent, filed no brief.

OPINION

ELLISON, J.

Plaintiff alleged a contract of marriage with defendant and charged him with a breach of his promise. She likewise charged him with seduction. The trial in the circuit court resulted in her favor.

There was evidence tending to prove the contract and its breach by defendant's refusal. There was also evidence showing plaintiff to have been delivered of a child. There was evidence tending to show that defendant was the father of the child and evidence tending to show that he was not. The court admitted evidence in behalf of defendant tending to show that plaintiff was a woman of bad reputation for chastity; but refused to allow evidence tending to show that she had had sexual intercourse with other men before and after the date fixed by her as the date of the engagement to marry.

Seduction, in an action for breach of promise to marry, is allowed to be shown in aggravation of damages. Seduction, in general terms, means to withdraw one from the path of rectitude. It is a leading astray. And, as applied to intercourse with a woman under a promise of marriage, it implies that a woman of previous chaste character has been induced to consent to unlawful sexual relations by persuasion and the promise to marry. Therefore, evidence of previous unlawful intercourse with others destroys the very basis upon which seduction must rest, viz., previous chastity, and would relieve the case of such aggravating circumstance. The evidence should have been admitted. [State v. Patterson, 88 Mo. 88; State v. Wheeler, 94...