Parker v. Bruner
| Decision Date | 19 July 1984 |
| Docket Number | No. 13313,13313 |
| Citation | 686 S.W.2d 483 |
| Parties | Alice J. PARKER, Plaintiff-Respondent, v. Ronald A. BRUNER, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
James E. Reeves, Caruthersville, for plaintiff-respondent.
Russell X. Thompson, Memphis, Tenn., Hal E. Hunter, Jr., New Madrid, for defendant-appellant.
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
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
She said she finally consented to have sexual relations with him
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 plaintiff's 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 case 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...
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Parker v. Bruner, 13868
...on Count II was entered against the respondent in the amount of $75,000. That judgment was affirmed by this court. Parker v. Bruner, 686 S.W.2d 483 (Mo.App.1984). On March 22, 1983, the respondent filed an action (respondent's paternity action) to establish his paternity of the child, the e......
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Felton v. Hulser, WD
...deponent as admissions against interest ... even though he is present in court and able to testify, or has testified." Parker v. Bruner, 686 S.W.2d 483, 486 (Mo.App.1984). Thus, just as in the case of depositions, we conclude that a party has the right to introduce admissions into evidence ......