Cotton v. Kambly
| Decision Date | 19 November 1980 |
| Docket Number | Docket No. 45269 |
| Citation | 300 N.W.2d 627,101 Mich.App. 537 |
| Parties | Bettina COTTON, Plaintiff-Appellant, v. Arnold KAMBLY, M. D., and The University Center, Inc., a Michigan corporation, jointly and severally, Defendants-Appellees. 101 Mich.App. 537, 300 N.W.2d 627 |
| Court | Court of Appeal of Michigan — District of US |
[101 MICHAPP 538] Marjory B. Cohen, Detroit, for plaintiff-appellant.
Robert E. Dice, Detroit, for Kambly.
James R. Cmejrek, Ann Arbor, for University Center.
Before DANHOF, C. J., and KELLY and CORSIGLIA, * JJ.
Plaintiff, Bettina Cotton, appeals from a trial court order granting summary judgment in favor of defendants Arnold Kambly, M. D. and University Center, Inc. In her complaint, plaintiff claimed she suffered mental and emotional damages when Dr. Kambly induced her to engage in sexual intercourse with him during the course or under the guise of psychiatric treatment. She alleged willful misconduct, negligence, malpractice, fraudulent misrepresentation and deceit on the part of Dr. Kambly. Her assertion of liability on the part of University Center was based on the doctrine of respondeat superior. Henceforth, references to defendant in this opinion are to Dr. Kambly.
In granting the defense motion for summary judgment, the trial court ruled that the complaint failed to state a claim upon which relief could be granted because the allegations contained therein were covered by M.C.L. § 551.301; M.S.A. § 25.191, which abolishes all civil causes of action for alienation of affections, criminal conversation, seduction of any person 18 years of age or older and breach of [101 MICHAPP 539] contract to marry. The judge stated that this statute was intended to transfer actions of the type brought by plaintiff to the criminal side of the court. He referred to M.C.L. § 750.90; M.S.A. § 28.285, which makes it a felony for a doctor to induce a patient to engage in sexual intercourse under the guise of treatment.
Plaintiff brought the present action in her own name for her own injuries; therefore, her action was not based on alienation of affections or criminal conversation, which are common law torts involving interference with the marriage relationship, or breach of contract to marry. Defendant argues that plaintiff's action was, in essence, for seduction. Seduction has been defined as,
"the act of persuading or inducing a woman of previously chaste character to depart from the path of virtue by the use of any species of acts, persuasions, or wiles which are calculated to have, and do have, that effect, and resulting in her ultimately submitting her person to the sexual embraces of the person accused." Savage v. Embrey, 216 Mich. 123, 127, 184 N.W. 503 (1921).
At common law, loss of services was indispensable to a cause of action for seduction and as a result, a right of action for seduction was possessed only by the parents or guardian of a seduced minor. Prosser, Torts (4th ed.), § 124, p. 884. However, Michigan is one of the few jurisdictions which allowed a woman to sue in her own name for her own seduction. Weiher v. Meyersham, 50 Mich. 602, 16 N.W. 160 (1883); Becker v. Mason, 93 Mich. 336, 53 N.W. 361 (1892). M.C.L. § 551.301; M.S.A. § 25.191, abolishing the civil causes of action for seduction of a woman 18 years of age or older and for the other common law torts previously mentioned, became effective in 1935. Essentially the same language is [101 MICHAPP 540] contained in M.C.L. § 600.2901; M.S.A. § 27A.2901, which is part of the Revised Judicature Act of 1961. M.C.L. § 600.2910; M.S.A. § 27A.2910, part of the same act, expressly limits actions for seduction to females under the age of 18 and confers standing on the victim's parents or guardian to bring the action.
Defendant relies on Nicholson v. Han, 12 Mich.App. 35, 162 N.W.2d 313 (1968), which was cited as controlling by the trial court. In Nicholson, the plaintiff and his wife consulted the defendant doctor for psychiatric and marriage counselling services. According to plaintiff, instead of rendering the agreed-upon services, the doctor persuaded plaintiff's wife to engage in sexual relations with him and to obtain a divorce. Plaintiff sued, alleging breach of contract, malpractice, assault and battery, negligence and fraud on the part of the doctor. The lower court dismissed the action and this Court affirmed, holding that plaintiff's breach of contract and fraud allegations were actually claims for alienation of affections and criminal conversation abolished by statute.
We do not find Nicholson dispositive in the instant case. This Court never addressed the question of malpractice in Nicholson, since the appeal was from the trial court dismissal of the breach of contract and fraud counts only. Even if we employ the type of analysis utilized in that case, whereby we look beyond the labels used by plaintiff in defining her cause of action to determine whether her claim is for seduction, we find summary judgment was improperly granted in the present case. Part of plaintiff's claim is for medical malpractice, which has been defined as the failure of a member of the medical profession, employed to treat a case professionally, to fulfill the duty to exercise that degree of skill, care and diligence...
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