Heggie v. Hayes

• Decision Date: 03 February 1919
• Citation: 208 S.W. 605,141 Tenn. 219
• Parties: HEGGIE v. HAYES.
• Court: Tennessee Supreme Court

208 S.W. 605

141 Tenn. 219

HEGGIE v. HAYES.

Supreme Court of Tennessee.

February 3, 1919

Certiorari to Court of Civil Appeals.

Suit for breach of promise and seduction by Elizabeth Hayes against George Heggie. The Court of Civil Appeals affirmed so much of the judgment for plaintiff as related to the breach of promise, but directed a remittitur of $3,000 of that portion of the judgment relating to seduction, and entered a total judgment of $8,000, and both sides have filed petition for certiorari. Judgment of Court of Civil Appeals affirmed.

GREEN J.

This suit was brought for breach of promise and seduction. There was a judgment below in favor of plaintiff for $5,000 for the breach of promise of marriage, and $11,000 for seduction. The Court of Civil Appeals affirmed so much of the judgment as related to the breach of promise, but directed a remittitur of $8,000 on that portion of the judgment relating to seduction, and entered a total judgment of $8,000.

Both sides have filed petitions for certiorari, the plaintiff in error insisting that there should have been no recovery against him at all, and the defendant in error complaining of the remittitur suggested by the Court of Civil Appeals, which she accepted under protest. The case has been argued in this court.

We have discussed the facts of this case orally, and do not find it necessary to embody them in this opinion, and shall only consider herein the questions of law raised by the parties.

It is conceded by the plaintiff in error that there was some evidence below of a marriage contract between the parties and of a breach of that contract, and that there was some evidence below of seduction, but it is maintained that these matters were not proved as alleged in the declaration, or, in other words, that there was no evidence to sustain the verdict of the jury as the case was laid.

The first count of the declaration alleges a contract entered into between the parties whereby they mutually agreed to marry each other, and that this contract was entered into October 1, 1915. The plaintiff below averred that she had continued unmarried and ready and willing to marry the defendant below, and on divers days had requested that the compact be fulfilled, but that the defendant below refused and still refuses, to carry out said contract.

Proof introduced tended to show that the contract of marriage was entered into between the parties in September, 1912, instead of in October, 1915, as averred in the declaration, and it is urged that there is a fatal variance between the pleading and the proof.

This argument is not well taken. The alleged variance relates only to the matter of time.

While it is true that in personal actions, the rule of the common law is that the time must be stated, nevertheless, as said by Mr. Stephens "The time is considered in general as forming no material part of the issue, so that one time may be alleged and another proved. The pleader therefore assigns any time he pleases to a given fact." Stephens on Pleadings, star p 292.

Mr. Stephens goes on to say that the time should be alleged under a videlicet unless the pleader wishes to be held to prove such time strictly. We suppose, however, that in modern pleading a videlicet is not strictly required. This is only a matter of form.

The modern rule is thus stated by Mr. Shipman:

"In all matters generally speaking, save those previously mentioned, time is considered as forming no material part of the issue, so that the pleader, when required to allege a time for any traversable fact, is not compelled to allege it truly, and may state a fact as occurring at one time and prove it as happening at a different time. The reason of the rule is that as a day is not an independent fact or substantive matter, but a mere circumstance or accompaniment of such matter, it obviously cannot in its own nature be material, and can only be made so, if at all, by the nature of the fact or matter in connection with which it is pleaded. Therefore, if a tort is stated to have been committed, or a parol contract made on a particular day, the plaintiff is in neither case confined in his proof to the day as laid, but may support the allegation by proof of a different day, except that the day as laid in the declaration and as proved must both be prior to the commencement of the suit." Shipman's Common-Law Pleading, p. 391.

That a parol contract may be laid as of one day and proven as of another has been the rule since the Lady Shandois v. Simpson, Cro. Eliz. 880.

"Time is usually immaterial and need not be proved as laid, but when material as a matter of description, strict proof is necessary." 31 Cyc. 706.

It is not suggested that there was more than one contract of marriage between the parties to this case, so that the time or date of this contract is not material as a matter of description nor for any other reason. So, under the authorities above cited, we must hold that the variance between the time averred and the time proven is immaterial.

To the same effect is May v. Railroad, 129 Tenn. 521, 167 S.W. 477, L. R. A. 1915A, 78, Ann. Cas. 1916A, 213.

In addition, this court has held that an omission to lay any time in a declaration is cured by the verdict (Nashville Life Ins. Co. v. Mathews, 8 Lea [76 Tenn.] 499); and the general rule also is that a misstatement of time in a declaration is cured by the verdict. 31 Cyc. 776.

The quotation made by plaintiff in error from 3 Enc. Pl. & Pr 186, to the effect that the time and place of the promised marriage need not necessarily be averred, but, when pleaded, the proof must conform to the time and place alleged, relates to the time and place of the execution of the contract, and not to the time and place when the contract of marriage was entered into. Other authorities cited in the brief of plaintiff in error do not require comment. Most of them are not...