Reynolds v. Jobes

• Decision Date: 03 April 1978
• Docket Number: No. KCD,KCD
• Citation: 565 S.W.2d 690
• Parties: Larry Douglas REYNOLDS, Appellant, v. Russell Earl JOBES, Jr., Respondent. 28935.
• Court: Missouri Court of Appeals

Page 690

565 S.W.2d 690

Larry Douglas REYNOLDS, Appellant, v. Russell Earl JOBES, Jr., Respondent.

No. KCD 28935.

Missouri Court of Appeals,Kansas City District.

April 3, 1978.

Kranitz & Kranitz, Theodore M. Kranitz, St. Joesph, for appellant.

Robert B. Randolph, St. Joseph, for respondent.

Before WELBORN, Special Judge, Presiding, PRITCHARD, J., and HIGGINS, Special Judge.

ROBERT R. WELBORN, Special Judge.

Action for damages for alienation of affections of plaintiff's wife and for criminal conversation with plaintiff's wife. Jury trial resulted in verdict for defendant on both counts. Plaintiff appeals.

Larry Douglas Reynolds, plaintiff-appellant, married Sharon Ann Pinson September 30, 1967. Two children were born to the marriage. In 1972, Sharon filed suit for divorce, but the action was dropped. On September 5, 1974, she filed a petition seeking dissolution of the marriage. On March 14, 1975, the marriage was dissolved by decree of the Buchanan County Circuit Court. The award of custody of the children to the husband was the subject of an appeal to this court which affirmed the judgment of the circuit court awarding custody to the husband. In re Marriage of Reynolds, 537 S.W.2d 864 (Mo.App.1976). On April 7, 1975, Sharon married Russell E. Jobes, Jr., the defendant in this action.

According to plaintiff, he and Sharon had been happily married until Jobes appeared on the scene around 1970. Plaintiff and Jobes had worked together as electricians before Larry and Sharon were married. Jobes and his then wife and the Reynoldses visited back and forth and around Decoration Day, 1970, the four of them took a trip to Wyoming. Larry stated that Sharon's attitude toward him began to change shortly afterwards. In July, 1970, Larry confronted Jobes about having an affair with Sharon. According to Larry, Jobes acknowledged that he was. Larry told Jobes to stay away from Sharon. After learning that Jobes was not doing so, Larry again encountered Jobes and struck him in the mouth. Larry again warned Jobes to stay away from his wife.

Plaintiff produced evidence that Sharon and Jobes met from time to time at various places, including at the Reynolds house and an apartment of an acquaintance. According to Larry, he didn't become aware "for sure" that Jobes and Sharon "were running together" until after he and Sharon separated on September 4, 1974.

As summarized by appellant, defendant's evidence "went to a denial of any misconduct prior to December, 1974, and a denial by Sharon that her marriage to Reynolds was a happy one." By answer to interrogatories, Jobes admitted: "From and after December 11, 1974, Russell Jobes and Sharon Jobes (sic) were associating with each other and had sexual intercourse together."

The defendant's answer asserted that it was not the actions and conduct of the defendant which drove Sharon from plaintiff but that plaintiff by his mistreatment of Sharon made life with plaintiff intolerable for her and caused ultimately the dissolution of the marriage. On behalf of defendant, there was evidence that plaintiff had abused Sharon physically and by name calling, commencing in 1970 and until the action for divorce filed in 1972. Defendant also presented evidence that plaintiff had struck and kicked Sharon in the parking lot at the Kansas City baseball stadium in the summer of 1974. Three couples had driven together to the game and when Sharon and Larry got into an argument about her not going to the game, Larry knocked Sharon down and kicked her. According to Larry, Sharon fell when she struck at him and he did not strike her. He had the same explanation for an altercation which occurred the night before the two separated in September, 1974. According to Sharon, she came home from class at about 10:30 P.M. Larry called her a "dirty bitch," choked and hit her, knocking her head against a cabinet, causing a "big cut." He knocked her to the floor and kicked her in the breast.

The defendant also alleged that plaintiff "actively and passively" consented to defendant's intercourse with Sharon after the separation of plaintiff and his wife. "With the knowledge that Defendant was associating himself with Plaintiff's wife, Plaintiff told his wife that she could associate with the Defendant and do as she pleased. At said time and up to the time of the dissolution of the marriage between Plaintiff and his wife, Plaintiff had no concern for the relationship between Defendant and his wife because Plaintiff was dating and associating himself with another woman."

According to Sharon, in the latter part of November or the first part of December, 1974, she had a conversation with plaintiff and plaintiff told her she could date anyone she wanted "and he could date anyone he wanted to because of the new divorce laws." Plaintiff told Sharon he had been dating his lawyer's secretary. A St. Joseph school teacher had dates with plaintiff on October 19, 25, 27 and November 1, 1974.

Sharon testified that she had no sexual intercourse with defendant from the date of her marriage to plaintiff until December, 1974.

On this appeal, appellant has placed his contention of error in five categories:

1. Errors in taking evidence. 2. Errors in trial procedure. 3. Errors in jury instructions. 4. Errors in hearing argument. 5. General error. These contentions will be considered in order.

1. Errors in taking evidence.

A. Upon objection by defendant's counsel, plaintiff's counsel was prevented from inquiring of plaintiff's witnesses concerning defendant's reputation in the community "for associating with other women" and "for running around with other men's wives." There was no offer of proof as to what the witnesses would have answered. Therefore the trial court cannot be convicted of error. Thayer v. Sommer, 356 S.W.2d 72, 80-81(11, 12) (Mo.1962); Stringer v. Reed, 544 S.W.2d 69, 78(19) (Mo.App.1976). In any event, the law is well established that the character of a party to a civil action cannot be inquired into if not put in issue by the nature of the proceedings, such as in libel, slander, malicious prosecution, etc., where evidence of good character is relevant on the issue of damages. Browning v. Browning, 226 Mo.App. 322, 41 S.W.2d 860, 866-868(1-3) (1931).

Cases relied upon by appellant allowing evidence of character of complainant in rape cases do not provide a rule applicable to civil proceedings. 1 Wigmore on Evidence, § 64, p. 472 (3rd ed., 1940).

B. Upon rebuttal, plaintiff offered the testimony of plaintiff's mother that, when the parties to the marriage separated in 1972, Sharon came to her and begged her to intervene with Larry to take her back. When the defendant objected to the testimony as improper rebuttal, plaintiff offered the evidence to rebut Sharon's testimony that Larry begged her to come back. As defendant pointed out, that was not Sharon's testimony. She testified merely that "Larry called me and we got together and we started talking and we decided that we wanted to make our marriage last and we was going to forget about all the other stuff and he was going to quit drinking and calling me names and quit being mean and stay home and be a father and better all over. We tried. We went back together." Therefore, the testimony was not proper rebuttal on that matter. Plaintiff's counsel then enlarged upon his offer of proof and included the tender of the testimony to rebut Sharon's testimony that Larry initiated the reconciliation and, further, as evidence that Larry was not, as Sharon testified, "a violent and dangerous man from whom she was trying to get away." The offered rebuttal testimony was not contradictory of testimony by Sharon. As above noted, she testified that Larry called her but she did not say that he suggested the reconciliation. The proffered testimony did not contradict testimony of physical mistreatment of Sharon by Larry. Such occurrences were not totally inconsistent with her seeking the reconciliation, as the mother would have testified. No error on the part of the trial court has been demonstrated.

C. Sharon testified that she was four months pregnant at the time of her marriage to Larry and that Larry did not want to marry her but finally decided he would, "though he didn't love me." A former coworker of Larry testified that Larry told him that he "had to get married." "I don't want to, but I will have to marry her." Appellant describes such testimony as "unique in the annals of actions for alienation of affections, going as it does to a period before the plaintiff and his wife were even married." Such assertion may or may not be accurate but it does not suffice to carry appellant's burden of showing error on the part of the trial court. No authority is cited in support of appellant's proposition.

Appellant argues alternatively that the trial court erred in excluding in rebuttal an excerpt from Sharon's "Wedding Book," identified by Larry as being in Sharon's handwriting, describing their "romance" in which she stated that she and Larry "hit it off real good" from their meeting in December, 1966, that after two months of dating Larry proposed marriage and she accepted. "By then I had decided he was the guy for me." A wedding date was set for September 30, 1967.

Appellant argues that this evidence rebutted Sharon's testimony to the circumstances of their marriage.

The trial court did not err in this regard. The less than romantic aspects of the marriage would hardly have been recorded in the "Wedding Book." Larry acknowledged that Sharon was pregnant at the time of their marriage, although he placed its onset subsequent to the engagement. The trial court's refusal of the offered evidence was not erroneous.

D. Appellant states in Point IV of his brief that the trial court erred in refusing, on the basis of defendant's judicial admission of sexual intercourse with plaintiff's wife, to permit plaintiff to adduce evidence on the manner and places of such activity, ...