Elkington v. Foust

• Decision Date: 19 September 1980
• Docket Number: No. 16298,16298
• Citation: 618 P.2d 37
• Parties: Lynn ELKINGTON as Guardian Ad Litem for C , a minor, Plaintiff and Respondent, v. Rex FOUST, Defendant and Appellant.
• Court: Utah Supreme Court

Page 37

618 P.2d 37

Lynn ELKINGTON as Guardian Ad Litem for C , a minor Plaintiff and Respondent, v. Rex FOUST, Defendant and Appellant.

No. 16298.

Supreme Court of Utah.

Sept. 19, 1980.

Steven F. Lowe of Follett & Lowe, Stephen W. Cook of Littlefield, Ritchey, Cook & Peterson, Salt Lake City, for defendant and appellant.

Phil L. Hansen of Hansen & Hansen, Salt Lake City, for plaintiff and respondent.

CROCKETT, Chief Justice:

Defendant Rex Foust appeals from a jury verdict which found that he had engaged in a course of sexually assaulting and abusing his adopted daughter plaintiff C from the time she was nine years old until she left home at age sixteen, for which the jury assessed damages: general $10,000, specials $2,600, and punitive $30,000.

The record discloses only two issues raised by the defendant which give us any serious concern: (1) the matter of instructing the jury as to the consent of the victim as a defense; and (2) whether the damages awarded were excessive.

The plaintiff minor C was born in 1960. When she was four years old, her parents Verle and Deon were divorced and her custody was awarded to her mother Deon. Deon was at that time employed by the Hercules Powder Company as the secretary for defendant Rex Foust, an official of that company. This continued until 1969 when they were married. Shortly thereafter, Rex Foust was transferred by his company to Cumberland, Maryland, and the parties moved there. In 1974, defendant Rex Foust adopted C as his daughter.

In that same year, the defendant was transferred back to the Hercules plant in Utah and the family moved back here. Meanwhile, C lived as a member of the family until January, 1977, when, because of the pressures, distress and illness resulting from the difficulties referred to below, she left the home to reside with her grandparents in Tooele.

The evidence in this case as believed by the jury constitutes a tragic story of child abuse of plaintiff C by the defendant. ¹ It would be sordid enough involving any minor. But it is intensified by the fact that it appears that the defendant took advantage of his parental role, and of the girl's love and concern for her mother, to engage in activities with her resulting in sexual and psychological abuse and terror which caused her serious and permanent injury.

It began when C was nine years old in an episode in connection with bathing. The defendant got her to manipulate his own privates, then with his finger deflowered her virginity, causing such pain that it brought her to tears. Familiarities of this character continued and progressed into episodes of his having intercourse with her intermittently. Involved therein were various favors granted or withheld for his purposes; and combined with this, warnings of secrecy and threats of dire consequences to her mother and the family if she should tell anybody.

C testified to numerous occasions of sexual abuse, that she lived in fear of violence if she refused to submit to the defendant's desires, and that the reason she did not tell her mother what was happening was because "I was scared, and I didn't want to hurt my mother.... He told me, it would hurt my mother and we would be split up." The evidence is that she suffered mental anguish and physical illness resulting in severe headaches, abdominal pain, nausea and vomiting, for which reasons she was hospitalized twice. This distressful situation continued until she was sixteen, when she managed the courage and ingenuity to escape from it and went to live with her grandfather in Tooele.

The testimony of Dr. Richard C. Ferry, a psychiatrist who has extensively examined and is treating C , includes various expressions as to his findings and opinions: that she suffers from a complexity of psychological conditions which have caused a deep-seated neurosis and distortion of her personality; that this includes severe emotional disturbances, fears and anxieties, disorientation and depression, in which is involved an overwhelming sense of guilt, which manifests itself in difficulty in having a sense of self-esteem and well-being. He further states that she has, in effect, been robbed of her childhood and that, because that cannot be relived, the values and the stability which are normally realized from a wholesome childhood are not restorable, but are permanently lost.

He also testified: that her neurosis causes her to suffer inordinate fears about men and the harm she believes they could cause her to express her desire not to want to marry or have children. All of this has resulted in deep-seated scars which will persist throughout her lifetime. Wherefore, she requires, and will most likely continue to require, psychotherapy and possibly medication.

The defendant's charge of error of main concern here is that the trial court failed to instruct the jury correctly on consent as a defense. The essence of the position essayed by him is stated in his request:

You are instructed as a matter of law that if you find that the plaintiff consented to the conduct of the defendant towards her person that she cannot recover damages for such conduct or for the harm resulting from it.

The trial court refused that request and, taking the opposite view, instructed the jury:

You are instructed that consent by the plaintiff to the conduct of the defendant, if any so existed, is no defense or justification to the acts complained of by the plaintiff.

It is noted that with respect to punitive damages the trial court included the instruction that:

... in considering the issue of exemplary or punitive damages, you may consider all of the conduct of the defendant and the plaintiff in determining whether and in what amount, if any, plaintiff should be entitled to punitive damages.

Focusing attention first upon the latter part of the instruction: Telling the jury that with respect to the issue of punitive damages they could consider "all of the conduct of the defendant and the plaintiff" would, of course, include the matter of consent. The defendant makes no complaint about that aspect of the instructions.

Upon comparison of the defendant's request with the instructions given by the court, it appears that the issue was squarely presented: whether the trial court should have instructed the jurors that if they found that the girl consented to the defendant's conduct she could not recover at all.

Defendant cites authorities to the effect that generally consent is a defense to a willful tort, with which we have no disagreement. ² But we do not see them as having any application to the instant situation for two reasons: because the plaintiff was a minor and incapable of giving consent to acts of this nature; ³ and because the defendant is precluded from taking advantage of any consent he seduced or coerced her into giving to engage in such activities. It would be an agreement for him to perpetrate a crime in violation of the protections our statute affords minors by prohibiting contributing to their delinquency; ⁴ and would be so contrary to commonly accepted standards of decency and morality that any consensual agreement to engage in such conduct would be rejected by the law as against public policy and void. Wherefore, it is our conclusion that the court was justified in refusing defendant's request to instruct the jury that if the plaintiff consented she could not recover.

Though the foregoing sufficiently disposes of the defendant's contention on the problem of consent, there are further observations to be made which have a bearing on the matter. The purpose of instructions to the jury is to inform them as to the law applicable to the evidence and enable them to resolve the issues in dispute. To that end, what each party is entitled to is to have instructions given as to his evidence and his theory of the case.

Here, the question of the actual consent of the plaintiff does not appear to be of any critical importance to the theory of either party. No question was involved as to whether there was an overcoming by force, as contrasted to giving consent, nor anything analogous to it. The defendant's position and his testimony was to deny any of the acts of sexual abuse or mistreatment of...