Comte v. Blessing, 50319

Decision Date14 September 1964
Docket NumberNo. 50319,No. 2,50319,2
Citation381 S.W.2d 780
PartiesJohn J. COMTE, Plaintiff-Appellant, v. Lonnie BLESSING, Defendant-Appellant
CourtMissouri Supreme Court

Buerkle & Lowes, Jockson, Albert C. Lowes, Jackson, for appellant.

Loe J. Rozier, Perryville, for respondent, John J. Comte.

STOCKARD, Commissioner.

Plaintiff, John J. Comte, brought suit in two counts for criminal conversation and alienation of affections against Lonnie Blessing. Pursuant to jury verdict, judgment was entered on Count I (criminal conversation) for defendant, and judgment was entered for plaintiff on County II (alienation of affections) in the amount of $5,000. Plaintiff has appealed from the judgment as to Count I wherein he sought $50,000 actual and punitive damages, and defendant has appealed from the judgment as to Count II. We shall first review defendant's contentions of error relating to the judgment on Count II.

Defendant first contends that Count II of the petition fails to state a claim upon which relief can be granted in that (1) 'it must be alleged * * * that the defendant actually enticed away the spouse of the plaintiff;' that (2) 'the plaintiff himself did not cause the alienation;' and (3) that 'plaintiff's spouse did not, in fact, voluntarily bestow her affections upon a stranger'.

The elements of a cause of action for alienation of affections are defendant's wrongful conduct, plaintiff's loss of the affection or consortium of his spouse, and the causal connection between such conduct and the loss. 27 Am.Jur. Husband and Wife Sec. 523; 42 C.J.S. Husband and Wife, Sec. 669; Rank v. Kuhn, 236 Iowa 854, 20 N.W.2d 72 74; Koehler v. Koehler, 248 Iowa 144, 79 N.W.2d 791, 796; Paulson v. Scott, 260 Wis. 141, 50 N.W.2d 376, 31 A.L.R.2d 706; McQuarters v. Ducote, Tex.Civ.App., 234 S.W.2d 433. Plaintiff alleged that defendant 'harbored [plaintiff's wife] into his home, constantly kept company with her in various places, persuaded her to live apart from plaintiff, * * * and by arts and wiles of his caused plaintiff's said wife to become dissatisfied with her marriage to plaintiff * * *.' Defendant's motion to require Count II to be made definite and certain, which was overruled, asked only that plaintiff be required to allege 'where the alleged marriage took place * * * and at what time or places the alleged acts referred to in paragraphs 2 and 3 of Count II * * * transpired.' The petition is not a model, and some of the allegations border on allegations of conclusions and not of facts, but in the absence of any more specific objection to Count II it sufficiently alleged as the wrongful act of defendant that he enticed away the spouse of the plaintiff. Items (2) and (3) above, if established by proof, constitute defenses to the case of action for alienation of affections, 42 C.J.S. Husband and Wife, Secs. 669 and 670, and to state a cause of action it is not essential that plaintiff anticipate and negative such defenses in his petition. The essential issues on this appeal are whether there was sufficient evidence to submit to the jury the issue of the alienation of affections by defendant of plaintiff's wife, and if so, whether that issue was properly submitted by the instructions.

Plaintiff and his wife, Helen Marie, were married on February 9, 1952, she then being about 18 years of age and four months pregnant. During the marriage, which was dissolved by divorce on September 14, 1961, she gave birth to six children. Plaintiff and his wife lived at several places in Perry County, but in 1959 they moved to a house about one mile from where the defendant, a bachelor who was then 54 years of age, lived alone on his farm located four miles west of Perryville. Plaintiff was a carpenter by trade, and commencing in 1960 he worked in St. Louis, but would return to his home on Wednesday nights and on weekends. Social 'visits' between plaintiff and his wife and the defendant commenced in the latter part of 1959 or early 1960, and the three of them went to or were at dances together, apparently on numerous occasions. The first meeting between defendant and Helen Marie without plaintiff being present occurred after she wrote defendant a note, delivered by her 'little boys,' in which she asked him to stop by her house. In August 1960, plaintiff noticed that his wife was 'cold' toward him, and after a conversation with her about it he went to see defendant to find out if it was true, as plaintiff said, that defendant was 'seeing my wife while I was in St. Louis.' Defendant admitted to plaintiff that he had had sexual intercourse with Helen Marie, and at the trial defendant admitted four acts of sexual intercourse with her, two and possibly three acts occurring after this conversation between plaintiff and defendant. It is not entirely clear from the evidence when this conversation took place, but apparently it occurred on September 21, 1960, the day that defendant entered a hospital where he remained for three weeks. While defendant was in the hospital, at his wife's request plaintiff took her 'a few times' to visit defendant after she told her husband that she 'loved him [defendant] and was going to see him.' After defendant returned to his home, and after plaintiff knew that Helen Marie professed to be in love with defendant and that they had engaged in an act of adultery, on several occasions plaintiff took his wife by automobile to defendant's home, apparently at night, and left her there alone with him. Sometimes he would return to get her and other times she would walk home. At one time when Helen Marie walked to defendant's house, plaintiff went there ahead of her and apparently hid under the bed, but when his wife arrived defendant talked to her on the porch, and the inference is that he would not let her in the house. Plaintiff admitted that defendant told him on more than one occasion that his wife was 'chasing him,' and that at one time defendant asked plaintiff to keep his wife away from him. Plaintiff stated that he went to defendant's home a 'number of times' and discussed with him the fact that Helen Marie was coming over and that 'he [defendant] should make her go back home,' and he added that it was 'impossible' for him (plaintiff) to keep her at home. He attempted to talk to Helen Marie about stopping her affair with defendant but did not get her 'complete cooperation.' In his deposition, read to the jury by plaintiff as a declaration against interest, defendant stated that he never intended to marry Helen Marie and always told her so, but she 'bothered me' and he left her alone but she would not let him alone. Plaintiff knew that his wife was writing 'love letters' to defendant, and when he asked defendant for those letters he readily gave them to plaintiff. On September 21, 1960 when defendant entered the hospital, he told Helen Marie in plaintiff's presence that she should 'go back' to plaintiff and that he could not marry her. However, it was subsequent to this that acts of sexual intercourse occurred between defendant and Helen Marie, and in addition, on several occasions defendant went to plaintiff's house in his absence and he and Helen Marie sat in front of the house in defendant's truck. At such times he affectionately embraced her and she kissed him.

In December 1960, plaintiff left his home and lived with his mother until February 9, 1961 when he returned. He found that his wife was 'cold' and 'ready to leave.' In a letter directed to defendant and dated February 9, 1961 plaintiff stated that he would not 'give' his wife a divorce 'but if she leaves me for more than 48 hours she cannot ever come back.' He also stated that he would not kill her or defendant, but that he had told her what he was going to do and that defendant should 'ask her [and] she will be glad to tell you.' His intentions in this respect are not revealed in the evidence. Plaintiff's wife did leave the house the next morning because, according to plaintiff, 'she wasn't gonna live in the same roof where I lived.' After staying away about ten hours she returned to the house, ate supper with her husband and children and then 'went back to [defendant's] house and stayed some more.' The following day plaintiff intentionally took an overdose of 'nerve tablets,' and was hospitalized about four weeks. Helen Marie was then home because plaintiff fired a gun into the floor of the house 'to make her stay back from me' when she 'wanted to help me and I didn't want no help.' When he returned home from the hospital his wife then left and went to work. Plaintiff subsequently filed suit for and obtained a divorce, including custody of the children, two of whom at time of trial were in a private home and the other four were in a church home for children.

Helen Marie testified as a witness for defendant. She stated that she fell in love with defendant the first time she saw him but that she did not love him any more. She also stated that she never loved her husband, even at the time she married him. She admitted her promiscuity with defendant with an air of braggadocio, and she stated in effect that she was the aggressor in the affair. She admitted that her father had talked to her about her affair with defendant, but that she told him 'to mind his own business,' and that she would 'live [her] life as [she] pleased.' She stated that she made similar statements to her brother, and concluded with the comment that 'Nobody tells me what to do. I do as I please.'

Defendant contends that the trial court erred in failing to direct a verdict in his favor as to Count II for alienation of affections because (1) Helen Marie was the active, moving force, that is, the seducer, and (2) plaintiff permitted, contrived at, and consented to the acts of adultery.

The evidence authorizes a finding that Helen Marie was the aggressor or the seducer in her affair with defendant, and it has been held that where the alienation or separation of the spouses...

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  • Thomas v. Siddiqui
    • United States
    • Missouri Supreme Court
    • January 25, 1994
    ...Vacek v. Ames, 221 Neb. 333, 377 N.W.2d 86 (1985). Missouri courts have long recognized the tort of criminal conversation. Comte v. Blessing, 381 S.W.2d 780 (Mo.1964); Sandler v. Schmidt, 263 S.W.2d 35 (Mo.1953), rev'd on other grounds, Gibson v. Frowein, 400 S.W.2d 418, 422 (Mo. banc 1966)......
  • Helsel v. Noellsch
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    • Missouri Supreme Court
    • June 17, 2003
    ...are various defenses to alienation of affection, including causation, and the lack of wrongful conduct. See Comte v. Blessing, 381 S.W.2d 780, 782, 783-84, 786-87 (Mo.1964); Thornburg v. Federal Express Corp., 62 S.W.3d 421, 426 (Mo.App.2001). Damages must be proved. Kraus, 693 S.W.2d at In......
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    • Missouri Supreme Court
    • March 14, 1966
    ...or consortium of his spouse, and the causal connection between such conduct of defendant and the loss by plaintiff. Comte v. Blessing, Mo., 381 S.W.2d 780; Rank v. Kuhn, 236 Iowa 854, 20 N.W.2d 72, 74; Paulson v. Scott, 260 Wis. 141, 50 N.W.2d 376, 31 A.L.R.2d 706; 27 Am.Jur. Husband and Wi......
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    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • June 26, 1969
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