Liese v. Meyer
| Decision Date | 01 April 1898 |
| Citation | 45 S.W. 282,143 Mo. 547 |
| Parties | Liese v. Meyer, Appellant |
| Court | Missouri Supreme Court |
Appeal from Lafayette Circuit Court. -- Hon. Richard Field, Judge.
Affirmed.
J. D Shewalter and Sangree & Lamm for appellant.
(1) No amendment can change the cause of action, and whilst there is but one form of action it is still true that an action ex delicto can not be changed into an action for a breach of contract by amendment, nor can a cause of a ction be substantially changed by amendment. Holliday v Jackson, 21 Mo.App. 664; Philips v. Broughton, 30 Mo.App. 149; Hampkin v. Collier, 69 Mo. 170; Scovill v. Glasner, 79 Mo. 452; Field v Maloney, 78 Mo. 174; Drake v. Railroad, 35 Mo.App. 557; Parker v. Rhodes, 79 Mo. 88; Board of Supervisors v. Decker, 34 Wis. 378. (2) Where the contract of marriage, and a refusal on the part of the defendant is admitted or shown by the evidence, it is ordinarily true that the burden of proof is upon the defendant to show a legal excuse therefor. But where the plaintiff, as in this case, in her petition, affirmatively charges seduction, and as a result thereof, the birth of a child, and the defendant denies that he is the guilty party but admits that the plaintiff was seduced and gave birth to a child, the burden is upon plaintiff to prove affirmatively the guilt of defendant. (3) An alibi is a defense in all cases, civil as well as criminal. Hence if the evidence showed the absence of the defendant at the very time and place of the alleged original seduction it was a defense to that charge. The evidence, including letters of the parties, show that the defendant was not present. Hence the court committed error in refusing instructions numbers 6 and 9 for the defendant. (4) Instruction 7 refused for defendant invoked a correct principle of law and was warranted by the facts of this case. The jury should have been cautioned in regard to the alleged confession of defendant, made in German two years before and translated in court. State v. Moxley, 102 Mo. 374; 1 Greenl. on Ev. [15 Ed.], secs. 200 and 214. (5) Again, instruction 4 given for plaintiff was, under the pleadings, admissions and testimony in this case, in direct conflict with instruction 1 given for defendant. This was reversible error. In her instruction the jury were told that the burden was upon defendant to prove his "release" (that is, the seduction by another man) and in our instruction the jury were rightly told that the burden of proving the seduction by the defendant was on her. Such instructions are repugnant, irreconcilable and only tend to confuse and not to guide the jury. (6) Instruction 9 given for plaintiff, in so far as it allowed punitive damages because of defendant's answer denying the seduction and averring that she was seduced by someone else, was bad law under the facts of this case. Because there was total absence of evidence of "want of good faith" on defendant's part. Such evidence was necessary before such doctrine can be invoked. Drenslow v. Van Horn, 16 Iowa 476. (7) On proper application plaintiff would have been entitled to an order permitting "inspection" of material papers in our possession. This should have been on due notice. R. S. 1889, secs. 2177, 2178, 2179, 2180 and 2181. Now the notice given was to produce these letters "to be used in evidence," not for inspection, and the trial court committed error when it compelled us, under the circumstances disclosed by the record, to turn these letters over to plaintiff for "inspection."
Wallace & Chiles and H. F. Wieman for respondent.
(1) There was no error in the court below in overruling the motion of defendant, appellant here, to dismiss or strike out the amended petition of plaintiff in this cause. Such amended petition did not materially or at all change the cause of action in this cause, as claimed in said motion. R. S. 1889, sec. 2074; Winn v. Cory, 43 Mo. 305; Turner v. Thomas, 10 Mo.App. 338; Garth v. Caldwell, 72 Mo. 622; Donaldson v. Butler Co., 98 Mo. 163; Stanfield v. Loan Ass'n, 53 Mo.App. 595; Biddle v. Ramsey, 52 Mo. 158; Elfrank v. Leiter, 54 Mo. 136; Russell v. Ins. Co., 55 Mo. 593; Pomeroy v. Benton, 57 Mo. 550; Robertson v. Railroad, 21 Mo.App. 633; Holt Co. v. Cannon, 114 Mo. 514; R. S. 1889, secs. 2066, 2098, 2104, 2117, 2100, 2244 and 2055. (2) But even if the court below had erred in overruling such motion to strike out such amended petition, the defendant having abandoned the motion by answering over and going to trial on such amended petition, has waived such error, if any, and can not insist upon it on appeal. Scovill v. Glasner, 79 Mo. 449; Silver v. Railroad, 21 Mo.App. 5; Sauter v. Leveridge, 103 Mo. 615; Holt Co. v. Cannon, 114 Mo. 519. (3) For tests by which to determine whether a second petition is an amendment or a substitution of a new cause of action, see Scovill v. Glasner, 79 Mo. 449; Lottman v. Barnett, 62 Mo. 159; R. S. 1889, secs. 2074, 2098, 2104 and 2109; Blair v. Railroad, 89 Mo. 383. (4) A suit for breach of promise to marry as well as a suit for seduction under promise of marriage both sound in damages. They are not suits on or to enforce the contract, but suits for damages for the breach of a contract. Burnham v. Cornwell, 63 Am. Dec. and note 548; Owen v. Railroad, 95 Mo. 176; Weber v. Hannibal, 83 Mo. 262; Price v. Ins. Co., 3 Mo.App. 262; R. S. 1889, sec. 2074; Carr v. Moss, 87 Mo. 450; Winn v. Cory, 43 Mo. 305. (5) As the law now stands, damages are recoverable for a breach of promise of marriage, and if seduction has been practiced under color of that promise the jury will undoubtedly consider it as an aggravation of damages; so far the law has provided and we do not profess to be wiser than the law. Paul v. Frazier, 3 Mass. 71; Green v. Spencer, 3 Mo. 227; Cole v. Holliday, 4 Mo.App. 94; Clements v. Moore, 11 Ala. 36; Wells v. Padgett, 8 Barb. 324; R. S. 1889, secs. 2055, 2066; Ibid, sec. 2113; Willard v. Stone, 7 Cow. 22; Roper v. Clay, 18 Mo. 383; Davis v. Stagle, 27 Mo. 600; Kriffin v. McConnell, 30 N.Y. 285. (6) Where a defendant in his answer attempts to justify his breach of promise of marriage by stating therein and thus placing upon record as the cause of his deserting the plaintiff that she has had criminal intercourse with various persons and fails to prove it, the jury have a right to take this circumstance into consideration in aggravation of the damages to which plaintiff may be entitled. Thorn v. Knapp, 42 N.Y. 475; Southard v. Rexford, 6 Cow. 254. An action for breach of contract of marriage is an exception as to the rule of damages to that in ordinary suits on contracts. (7) As to the measure of damages, this action has always been classed with actions of torts, as libel, slander, "seduction," criminal conversation, etc. Thorn v. Knapp, 42 N.Y. 477; Wells v. Padgett, 8 Barb. 323; Sedg. on Dam. [6 Ed.], 368; Burns v. Buck, 1 Lans. 268. (8) There was no error in the court below in awarding the opening and closing of the case to the plaintiff. Buckley v. Knapp, 48 Mo. 152. (9) The damages awarded plaintiff by the jury were not excessive. This court will not reverse a judgment for excessive damages unless in a very clear case. Woodson v. Scott, 20 Mo. 272.
The plaintiff sued the defendant on the eleventh of March, 1893, for damages for breach of contract of marriage, aggravated by seduction. The original petition fixed the year 1889 or 1890 as the date of the mutual agreement to marry, and charged that while the agreement was in force, "to wit: on or about the first day of August, 1891," the defendant seduced her, and on several occasions thereafter down to and including the fifteenth day of August, 1891, while the agreement was still in force, he continued to debauch her, in consequence of which she became pregnant, and was, on the fifteenth of May, 1892, delivered of a female child, which is still living; that she was always and still is willing to marry defendant, but he refused so to do. The prayer of the petition was, "Wherefore, by reason of the said seduction of plaintiff by defendant under promise of marriage, as aforesaid, the carnal knowledge of and pregnancy of plaintiff and the child-bearing consequent thereon, she was brought into public scandal, infamy and disgrace among her neighbors, greatly wounded in her womanly pride and sensibility, had suffered great bodily pain and mental anguish, was left with an infant daughter on her hands for support, and her prospects for life and eligible marriage blasted, to her great injury and damage in the sum of ten thousand dollars, for which with costs she asks judgment."
The defendant answered, admitting the contract to marry the plaintiff and the birth of the child, but denied the other allegations of the petition. He then set up a specific affirmative defense, claiming that he had often urged plaintiff to fulfill her promise to marry him, but that, from time to time, she put off the marriage up to the time of giving birth to the child, about May 13, 1892, and averring that at some time during the continuance of the marriage contract, the exact date being unknown to him, the plaintiff without his knowledge, had sexual intercourse and connection with some man or men unknown to him and as a result became pregnant, The reply denied generally the...
To continue reading
Request your trial