Glasscock v. Shell ex rel. Shell

• Decision Date: 06 June 1882
• Docket Number: Case No. 2786.
• Citation: 57 Tex. 215
• Parties: ANDREW J. GLASSCOCK v. JOHN SHELL, FOR USE OF AND AS NEXT FRIEND OF VIRGINIA SHELL, A MINOR.
• Court: Texas Supreme Court

57 Tex. 215

ANDREW J. GLASSCOCK

v.JOHN SHELL, FOR USE OF AND AS NEXT FRIEND OF VIRGINIA SHELL, A MINOR.

Case No. 2786.

Supreme Court of Texas.

Jun. 6, 1882.

APPEAL from Williamson. Tried below before the Hon. E. B. Turner.

The facts are sufficiently given in the opinion.

A. J. Peeler and S. R. Fisher, for appellant.

I. The service copy of the petition served upon the defendant Glasscock was not authenticated by the seal of the court, and the service should have been quashed. Pasch. Dig., arts. 1430, 1431, 1433; Chambers v. Chapman, 32 Tex., 569;Frosh v. Schlumpf, 2 Tex., 422.

II. The petition failed to allege the age of Virginia, from which the court could judge whether she was of marriageable age or of the age of consent, as fixed by statute, and defendant's general demurrer thereto should have been sustained. Pasch. Dig., arts. 4667, 7119; Schouler, Dom. Rel., 32; 1 Bish. Mar. and Div., 4th ed., sec. 149; Id., 32, 33; Tyler on Inf. and Cov., 125; Frost v. Vought, 37 Mich., 65;S. C., 5 Cent. L. J., 275.

III. In the absence of allegations or proof of special damages, or of aggravating circumstances attending a breach of promise of marriage, a charge which fails to advise the jury that damages are to be awarded upon the principle of compensation for the wrong done or injury actually sustained, and which leaves the question of amount solely to them without guide, restricting them only by the amount claimed in the petition, is erroneous. Rules by which damages are measured are questions of law; the amount to which a party may be entitled is a question of fact. G. H. & S. A. R. R. Co. v. Le Gierse, 51 Tex., 189. The court should indicate the rule. R. R. v. Nixon, 52 Tex., 19; Hadley v. Baxendale, 9 Exch., 341; Blake v. Midland R. R., 21 L. J. (Q. B.), 237; Knight v. Egerton, 7 Exch., 407. For cases reversed because the charge of the court was too broad, the jury being left to assess damages without the application of any rule of law, see R. R. v. Adams, 89 Pa. St., 31; S. C., 8 Reporter, 121; R. R. v. Kelley, 7 Casey, 372; R. R. v. Ogier, 11 Casey, 60. For cases of breach of promise of marriage holding that special damages must be alleged, see Cates v. McKinney, 48 Ind., 562;Leavitt v. Cutler, 37 Wis., 46;Bedell v. Powell, 13 Barb., 183. For breach of promise cases in which the rules or principles by which damages were to be assessed were laid down by the courts, see Harrison v. Swift, 13 Allen (Mass.), 144;Kelley v. Riley, 106 Mass., 339;S. C. 8 Am. Rep., 336;Sherman v. Rawson, 102 Mass., 395;Fiddler v. McKinlay, 21 Ill., 314;Miller v. Rosier, 31 Mich., 475;Dryden v. Knowles, 33 Ind., 148.

IV. In an action for breach of promise of marrige, where no special damages or aggravating circumstances are averred or proved, the jury should be told that the case does not call for vindictive or punitory damages, and that their award should proceed upon the principle of compensation for the injuries and losses actually sustained.Harrison v. Swift, 13 Allen (Mass.), 144;Dryden v. Knowles, 33 Ind., 148;Miller v. Rosier, 31 Mich., 475;Sherman v. Rawson, 102 Mass., 395;Fiddler v. McKinlay, 21 Ill., 314;Kelley v. Riley, 106 Mass., 339;S. C., 8 Am. Rep., 336.

V. Where a court, when asked, refuses to give a proper charge, which has been omitted in the general charge, and the party asking it may have been injured by such omission and refusal, the judgment will be reversed. Thompson on Charging the Jury, sec. 78; Green v. White, 37 N. J., 405;Ellsworth v. R. R. Co., 34 N. J., 93.

McFadin, Fisher & Dalrymple, and Walton, Green & Hill, for appellee.

I. An infant female under twenty-one years of age and over fourteen, being possessed of legal capacity to contract marriage, has the right to appear either in person or by attorney or next friend, by suit to recover for a breach of such contract. Willard v. Stone, 7 Cow., 22;Hunt v. Peck, 5 Cow., 475; Holt v. Ward, 2 Strange, 937.

II. The suit was correctly brought by John Shell, as the father and natural guardian, for the use of Virginia C. Shell. Pasch. Dig., arts. 10-42; Cannon v. Hemphill, 7 Tex., 184;Byrne v. Love, 14 Tex., 87;Robson v. Osborn, 13 Tex., 299; Bingham on Infancy (ed. 1824), 118; Id. (ed. 1848), 117, and note 1, citing McGiffin v. Stout, Coxe (N. J.), 72; Rucker v. McNeely, 4 Blackf. (Ind.), 179; Thomas v. Dike, 11 Vt., 273; Hardy v. Scanlan, 1 Miles (Penn.), 87; Trask v. Stone, 7 Mass., 241;Miles v. Bayden, 3 Pick., 213;Kid v. Mitchell, 1 Nott & McCord, 334;Hamilton v. Foster, 1 Brev., 464;Schermerhorn v. Jenkins, 7 Johns., 373; Smith v. Van Houten, 4 Halst. (N. J.), 381; Fellows v. Nivers, 18 Wend., 563; Heft v. McGill, 3 Barr (Penn.), 256; Drago v. Moso, 1 Spears (S. C.), 212; Blood v. Harrington, 8 Pick., 552;Fitch v. Fitch, 18 Wend., 513;Priest v. Hamilton, 2 Tyler (Vt.), 49;Bloom v. Burdick, 1 Hill, 130;Barber v. Graves, 18 Vt., 290;Porter v. Robinson, 3 A. K. Marsh. (Ky.), 253; White v. Albertson, 3 Dev. (N. C.), 241; Althorp v. Backus, Kirby (Conn.), 407.

III. The court correctly instructed the jury as to the law of the case, as the law leaves to the jury alone the amount of the recovery incident upon a breach of contract to marry, restricting them only by confining them within the limits of the damages laid in the petition. Johnson v. Jenkins, 24 N. Y., 257; 2 Parsons on Contracts, 68; Torre v. Somers, 2 N. & M., 267; Coryelle v. Calbaugh, Coxe, 77; Stout v. Prall, Coxe, 79; Green v. Spencer, 3 Mo., 318;Hill v. Maupin, 3 Mo., 323;Southard v. Rexford, 6 Cow., 254;1 Sedg. (7th ed.), p. 448, side page 210; Lawrence v. Cook, 56 Me., 187; Miller v. Hayes, 34 Iowa, 496.

IV. When no special damages have been alleged, the question of the amount of damages should be left to the jury, who are restricted to the amount in the petition.

Terrell & Walker also filed brief for appellee.

BONNER, ASSOCIATE JUSTICE.

This is a case of first impression in this court, and we have endeavored to give it full consideration, in the light of the arguments and briefs of the learned counsel.

It is an action for breach of promise of marriage, brought by appellee, John Shell, as next friend and for the use of Virginia C. Shell, a minor, against appellant, Andrew J. Glasscock. The petition, after setting forth the contract of marriage, alleges a simple breach, without any circumstances of aggravation whatever, and contains a general allegation of damages in the gross sum of $10,000. No special damages are alleged. There was no evidence of seduction or aggravation of like character. Judgment was rendered for the plaintiff for $4,000, from which this appeal is taken.

Under the disposition made of the case, it is not deemed necessary to pass upon all the questions presented, and particularly as some of them will not arise upon another trial. The first assigned error presents a preliminary question of jurisdiction as follows:

“The court erred in overruling the defendant's motion to quash the service of the citation and petition in said cause.”

The proposition under this assignment is that “the service copy of the petition served upon the defendant Glasscock was not authenticated by the seal of the court, and the service should have been quashed.”

The statement under this proposition reads:

“November 6, 1874, the defendant filed a plea in abatement, duly sworn to, appearing for the purposes of the plea only, alleging that the copy of the petition served upon him was not authenticated by the seal of the district court, accompanying the plea with the affidavit of the sheriff, to the effect that the copy of the petition served on Glasscock had no seal. On hearing of the motion, the defendant produced to the court the copy served upon him, which wanted the seal of the court, and also exhibited the affidavit of the sheriff. The motion being overruled, defendant excepted.”

We think the case of Thomas v. Womack, 13 Tex., 580, decisive of the question against the appellant, and that this assignment is not well taken. Neither do we think the third assigned error well taken, that the court erred in overruling Glasscock's demurrer to the petition, because it failed to allege the age of the said Virginia, so that the court could judge whether she was or not of marriageable age.

The question was raised by general and not by special demurrer.

The decisive question in the case arises upon the general charge of the court as given to the jury, and the refusal of the second and fifth special charges as asked by appellant Glasscock.

The general charge is as follows:

“1. If, from the evidence, you believe that there was a mutual agreement between the defendant A. J. Glasscock on the one part, and Miss Jennie Shell on the other part, to marry each other; and you further believe, from the evidence, that the defendant has broken that engagement, and has refused to carry the same into execution, against the wish and consent of the said Jennie Shell, then the plaintiff is entitled to a verdict. As to the amount of the recovery incident upon a breach of contract to marry, the law leaves the question to the jury alone, restricting them only by confining them within the limits of the damages laid in the petition.

2. If you believe, from the evidence in this case, that there was an engagement, and that it was broken off by mutual consent of the parties thereto, then the defendant is entitled to a judgment.

3. It is for you, gentlemen, to determine whether the plaintiff is entitled to recover; if so, then the law leaves the question of amount to you, and, from the facts and circumstances given in evidence, you are expected by the law to deal with the case justly and fairly.”

The second and fifth special instructions, pertinent to the above proposition, which were asked and refused, are as follows:

“2. There being no special damages averred and stated by plaintiff in her petition, the jury cannot find vindictive or exemplary damages.

5. To justify a verdict for anything more than compensatory damages, such...