45 S.W. 282 (Mo. 1898), Liese v. Meyer

Citation:45 S.W. 282, 143 Mo. 547
Opinion Judge:Marshall, J.
Party Name:Liese v. Meyer, Appellant
Attorney:J. D Shewalter and Sangree & Lamm for appellant. Wallace & Chiles and H. F. Wieman for respondent.
Case Date:April 01, 1898
Court:Supreme Court of Missouri
 
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Page 282

45 S.W. 282 (Mo. 1898)

143 Mo. 547

Liese

v.

Meyer, Appellant

Supreme Court of Missouri, First Division

April 1, 1898

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....

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