Parker v. Bruner, 66205

• Decision Date: 15 January 1985
• Docket Number: No. 66205,66205
• Citation: 683 S.W.2d 265
• Parties: Alice J. PARKER, Plaintiff-Respondent, v. Ronald A. BRUNER, Defendant-Appellant.
• Court: Missouri Supreme Court

Page 265

683 S.W.2d 265

Alice J. PARKER, Plaintiff-Respondent, v. Ronald A. BRUNER, Defendant-Appellant.

No. 66205.

Supreme Court of Missouri En Banc.

Jan. 15, 1985.

Russell X. Thompson, Memphis, Hal E. Hunter, Jr., New Madrid, for defendant-appellant.

James E. Reeves, Caruthersville, for plaintiff-respondent.

PER CURIAM:

This cause was certified to this Court, under Rule 83.01 by a dissenting judge in the Southern District of the Court of Appeals. The certifying judge deems the principal opinion in the Court of Appeals contrary to the decisions in Greco v. Anderson, 615 S.W.2d 429 (Mo.App.1980) and Breece v. Jett, 556 S.W.2d 696 (Mo.App.1977). He believes Greco and Breece "require proof of seduction by clear, cogent, and convincing evidence * * * [and] that the majority opinion does not require such proof."

In Greco, there is no mention of the burden of proof required in a seduction case. In Breece, the mention of the required burden of proof is obiter dictum and not authority as a precedent in Missouri. "There is no doctrine better settled than that the language of judicial decisions must be construed with reference to the facts and issues of the particular case, and that the authority of the decision as a precedent is limited to those points of law which are raised by the record, considered by the court, and necessary to a decision." State ex rel. Baker v. Goodman, 364 Mo. 1202, 1212, 274 S.W.2d 293, 297 (banc 1954).

The opinion of the Court of Appeals is not contrary to any previous decision of another appellate court of this State and we are not obliged to retain this cause.

Accordingly, the cause is retransferred to the Southern District of the Court of Appeals. See Morris v. Granger, 675 S.W.2d 15 (Mo. banc 1984).

RENDLEN, C.J., and HIGGINS, GUNN, BLACKMAR and DONNELLY, JJ., concur.

LOWENSTEIN, Sp. J., concurs in result in separate opinion filed.

WELLIVER, J., dissents in separate opinion filed.

BILLINGS, J., not sitting.

LOWENSTEIN, Special Judge, concurring.

I concur in result. The certification under Rule 83.01 was not effective for the reasons stated in the majority opinion. That being so, there is really no justifiable reason under the rules for this case to now stay within this Court's jurisdiction. State v. Higgins, 592 S.W.2d 151, 152-23 (Mo. banc 1979), relied upon by the dissent involved a transfer on the Western District's own motion prior to opinion. This Court ruled the constitutional question raised as reason for the transfer did not exist, but, relying upon Rule 83.06 and, Foremost-McKesson, Inc. v. Davis, 488 S.W.2d 193 (Mo. banc 1972), retained the case in the interest of judicial economy. Foremost-McKesson, supra, involved a declaratory judgment and request for injunctive relief by milk distributors over rules and regulations promulgated by the Commissioner of Agriculture which had considerable effect upon the sale of milk in the state. Despite the apparent lack of a substantial constitutional question this Court kept the cause which had come straight from the trial court. Neither the rules nor Higgins and Foremost-McKesson provide for jurisdiction here of this case which was improvidently certified after opinion. To do otherwise would ameliorate Rule 83.02 which here gives the Southern District the opportunity to address the substantial question raised in the dissent. Although this Court "may" accept transfer after the district's own motion under Rule 83.02, at least that whole court would have had the chance to address the matter. Also still available are the motion's of the losing party to rehear and transfer or to ask this Court to consider transfer. Rules 83.02 and 83.03.

The paucity of cases in Missouri for damages for seduction indicate the lack of urgency to resolve the continuation of the doctrine. Unlike Higgins, where a life sentence was imposed for first degree murder, or the activities in Foremost-McKesson, this case does not justify allowing circumvention of the whole Southern District's right to first address the matter.

If the posture here were different, and this Court could now consider this case either on motion from the Southern District or on motion of a party, I would favor reversal and abolishing the cause of action for seduction, or allowing a plaintiff to recover only her actual damages and no recovery for punitive damages.

WELLIVER, Judge, dissenting.

I respectfully dissent. The per curiam properly holds that the certificate of the dissenting judge shows no apparent conflict between the cited appellate decisions. It is regrettable that the matter was certified by the single dissenting judge rather than by appellant filing his application to transfer, a procedure I believe still available to him. The real conflict is that this court has never recognized that the participating woman can bring an action for seduction. The trend against permitting the participating woman from bringing such action together with the question of whether such action can be available to participating women and not to participating men are of sufficient general interest in my opinion to require us on the application of appellant to order transfer of the case. For these reasons, I would retain jurisdiction in the interest of judicial economy. State v. Higgins, 592 S.W.2d 151, 153 no. 1 (Mo. banc 1979). I would reverse.

The original petition involved only determination of paternity costs of child birth and child support, which subsequently was denominated as Count I of the amended petition. The amended petition added Count II which sought damages for seduction, both actual and punitive. After blood tests, appellant admitted all allegations regarding paternity and by his answer asked the court to fix the amount of costs of the child birth and child support. The matter was tried solely on Count II, which alleged seduction. Respondent received a verdict for twenty-five thousand dollars actual damages and fifty thousand dollars punitive damages. Appellant argues, inter alia, that the archaic common law action for seduction should be abolished.

The common law action for seduction is a relic of a lost era. "[S]eduction is the act of persuading or inducing a woman of previous chaste character to depart from the path of virtue by the use of any species of arts, persuasions, or wiles which are calculated to have and do have that effect, and result in her ultimately submitting her person to the sexual embraces of the person accused." 70 Am.Jur.2d Seduction § 1 (1973). The action arose as one of many judicial remedies available for interference with domestic relations. See generally, Pound," Individual Interests in the Domestic Relations," 14 Mich.L.Rev. 177 (1916). At common law, the action could be brought only by a parent--generally only the father--who was injured by the loss of services that resulted when their daughter was seduced. The common law offered two reasons why the seduced woman could not bring the action herself. First, the injury that the law protected against was the loss of services by one entitled to the services of the seduced woman. "The law developed as an offshoot of the action for enticing away a servant and depriving the master of his quasi -proprietary interest in his services. The wife and minor children were considered, in early common law, as superior servants [above all other servants] of the husband and father; loss of their services became the gist of his action." Magierowski v. Buckley, 39 N.J.Super. 534, 121 A.2d 749, 753 (1956). Courts almost uniformly have held that the "action for seduction, in whatever form it may be brought, is founded upon the supposed loss of service by the plaintiff, and it must of course be alleged and proved that the relation of master and servant existed when the injury was committed." Vossel v. Cole, 10 Mo. 395, 396 (1847). Some courts came to recognize that the loss of services is but a legal fiction and sub silento upheld the parent's action as one for interference with family relations. Magierowski v. Buckley, supra, 121 A.2d at 755. Second, "the seduced woman was denied a civil action for damages, on the ground that she was a 'consenting party,' violenti non fit injuria, or equally at fault, in pari delicto." Feinsinger, "Legislative Attack on 'Heart Balm,' " 33 Mich.L.Rev. 979, 986 (1935). A few jurisdictions, however, either by court decision or statute, came to consider the parent's action as another legal fiction and altered the common law by permitting the woman herself to maintain the action. See generally W. Prosser & W. Keeton, Prosser & Keeton on the Law of Torts 927 (1984). See also Magierowski v. Buckley, supra, 121 A.2d at 752.

Up until 1977, the law in Missouri was well settled that only the person entitled to the woman's services could bring a cause of action ex delicto for seduction. "It is settled that a woman cannot maintain an action for damages against her seducer." Jordan v. Hovey, 72 Mo. 574, 576 (1880). Prior to 1977, there are only fourteen actions for seduction. See Carader v. Forehand, 1 Mo. 504 (1826); Vossel v. Cole, supra; Grider v. Dent, 22 Mo. 490 (1856); Heinrich v. Kerchner, 35 Mo. 378 (1865); McKern v. Calvert, 59 Mo. 243 (1875); Morgan v. Ross, 74 Mo. 318 (1881); Comer v. Taylor, 82 Mo. 341 (1884); Smith v. Young, 26 Mo.App. 575 (1887); Bailey v. O'Bannon, 28 Mo.App. 39 (1887); Hartman v. McCrary, 59 Mo.App. 571 (1894); Mohelsky v. Hartmeister, 68 Mo.App. 318 (1896); Koenke v. Bauer, 162 Mo.App. 718, 145 S.W. 506 (1912); Owens v. Fanning, 205 S.W. 69 (Mo.App.1918); Boedges v. Dinger, 428 S.W.2d 930 (Mo.App.1968) (count two of plaintiff's petition). A somewhat similar cause of action available to the seduced woman was a contract action ex contractu--for the breach of a promise to marry, with the woman often alleging seduction as a factor aggravating the amount of damages sought. See e.g., Green v. Spencer, 3 Mo. 225 (1834); Roper v. Clay, 18 Mo. 383 (1853); Davis v....