Harmon v. Donohoe

• Decision Date: 14 November 1899
• Citation: 54 S.W. 453,153 Mo. 263
• Court: Missouri Supreme Court
• Parties: HARMON v. DONOHOE.

54 S.W. 453

153 Mo. 263

HARMON v. DONOHOE.

Supreme Court of Missouri, Division No. 1.

November 14, 1899.

SEDUCTION — EVIDENCE — INSTRUCTIONS.

1. Though plaintiff in an action for seduction be shown to be untruthful, a verdict for her, depending on the issue of chastity, may be supported by the testimony of others.

2. Instructions authorizing a verdict for plaintiff in an action for seduction under promise of marriage, if defendant refused to marry her "without justifiable cause," are not objectionable because not defining "justifiable cause," where, in instructions given for defendant, the court set out what would justify him in refusing to marry her.

3. An instruction which specifies what the jury may consider, in determining the amount of damages, and then tells them they may assess "any sum they may deem proper, not to exceed the amount sued for, namely, $10,000," is not misleading.

4. An instruction, in an action for seduction under promise of marriage, to find a verdict for defendant if, after the bringing of the action, plaintiff agreed with defendant that they would be married, and afterwards refused to do so, is properly modified by the condition, unless defendant's offer was made in bad faith, merely to avoid liability in the action, and with the intention immediately to abandon; there being evidence to show this.

Appeal from circuit court, Boone county; John A. Hockaday, Judge.

Action by Minnie Harmon against James T. Donohoe. Judgment for plaintiff. Defendant appeals. Affirmed.

Odon Guitar, W. H. Truitt, Jr., and F. M. Brown, for appellant. J. L. Stephens and Turner & Hinton, for respondent.

MARSHALL, J.

Plaintiff sues defendant for $10,000 damages for breach of promise of marriage, and, by way of agggravation of damages, alleges seduction under such promise. The promise is alleged to have been made in April, 1895, to be solemnized, first, in June, thereafter in September and October, 1895; and in consequence of the seduction the birth of a child is averred, on the 4th of March, 1896. Defendant denies every allegation in the petition not especially admitted, and then affirmatively pleads sexual intercourse with plaintiff by mutual consent, and not under promise of marriage, or by means of deception or undue influence; admits the birth of the child, and his paternity of it, and avers that, believing the plaintiff to be virtuous and chaste, and that he was the father of her child, he promised to marry her, and that in pursuance thereto he procured a marriage license, and took a justice of the peace and witnesses to her house, and offered to marry her, but she refused; that afterwards he learned that she was, before his acquaintance and connection with him, an unchaste and dissolute woman, and that if he had known that fact he would not have offered her marriage; and concludes with the allegation that at and long prior to the alleged promises she was a lewd and unchaste woman, and concealed the fact from him, by reason of which he was misled, and induced to make said offer of marriage. The reply is a general denial. There is no substantial conflict in the evidence that in March or April, 1895, the defendant promised and agreed to marry plaintiff, and "asked" and obtained her mother's consent, and so told various persons; nor that under such promise he afterwards seduced her, in consequence of which, many times repeated, she bore a child by him; nor that prior to the institution of this suit he had refused to fulfill his promise. The offer to marry her, set up in the answer, was made about 20 days after this suit was begun, and was accompanied with such emphatic declarations that he would marry her, but would walk away and never live with her, and that he had disposed of all his property and could not support her, that it is so palpable a fraud as to be unworthy of further notice. The issue in the case which was specially urged on the trial in the circuit court was the character of the plaintiff. Her previous chastity was attacked, and one witness (Otto Geringer) testified to frustrated attempts to lead her astray when she was a child of about 15 years of age; and another witness (John Zinn) testified to having sexual intercourse with her many times when she was about 15 or 16 years of age, all of which plaintiff denied. Both of these men were married men at the time, and they were proved on the trial to have bad reputations for morality and veracity; the latter's reputation being that of a common liar, by a number of most excellent and reputable people of Cooper and Boone counties, and defendant made no counter showing. Defendant attacked plaintiff's reputation for truth and chastity, and showed by the testimony of the impeached witnesses Geringer and Zinn, and by four other witnesses, that it was bad; but the plaintiff showed by the testimony of seven witnesses that her reputation for truth and chastity was good. The issue in this regard was therefore squarely put to the jury, and they found for the plaintiff, and their finding was approved by the trial judge. Under such circumstances, this court has always refused to interfere with a verdict and judgment. Defendant strenuously insists that the plaintiff is shown by the record to be untruthful. On cross-examination she denied testifying before the grand jury of Pettis county on the charge of attempted rape on her by Geringer in 1892; and the record of the proceedings before the grand jury, and the testimony of the prosecuting attorney and of one of the grand jurors, shows that she did so testify. If the verdict in this case depended wholly upon the testimony of the plaintiff herself, we should feel justified in reversing it for this reason; but there is abundant testimony in the case, outside of hers, upon which to support the verdict. The testimony of her mother, and the defendant's admissions to third persons, prove the promise of marriage, and the defendant's answer and testimony admit the sexual intercourse and the paternity of the child; and it is not pretended that she was intimate with any other named persons than Geringer (and he says his attempts were unsuccessful, or, rather, interrupted before accomplishment) and Zinn (and he locates the times at least three years before the birth of the child, so he could not be the father of the child). And the specific charges of unchastity resting upon the testimony of these two men, and they having been successfully and uncontradictedly impeached, the only charge remaining to be proved, to wit, unchastity, was not established; and the evidence as to her general reputation having been conflicting, with a preponderance, as to numbers, in her favor, it will be seen that, as permitted by the court in the fifth instruction given for defendant, the jury may have believed the plaintiff swore untruthfully about not testifying before the grand jury, and may have disregarded and rejected her whole testimony, and yet have found upon the other evidence in the case that, in spite of her untruthfulness, she had been wronged by the defendant, and may have believed that, notwithstanding she did not tell the truth in this matter, the defendant had no right to debauch her under promise of marriage. In addition to this, her veracity was not made an issue in the case by the pleadings. Her virtue was challenged, and proof of untruthfulness would not establish unchastity. Evidence of her lack of veracity was admissible to disprove her testimony as to her virtue, but any amount of proof that she was even a common liar would not tend to establish a charge of unchastity. We will not, therefore, disturb the judgment on account of this assignment of error.

2. Error in instructions is also assigned. The demurrer to the evidence at the close of the plaintiff's case was properly overruled, not only because the plaintiff had proved, prima facie, all the allegations of the petition necessary for a recovery, but because, properly considered, the defendant's answer admitted, substantially, the plaintiff's right to recover, unless he proved his...