74 S.W. 1024 (Mo. 1903), Broyhill v. Norton

Citation:74 S.W. 1024, 175 Mo. 190
Opinion Judge:VALLIANT, J.
Party Name:BROYHILL v. NORTON, Appellant
Attorney:Bremermann & Wherry for appellant. Kagy & Horn for respondent.
Judge Panel:VALLIANT, J. Robinson, J., absent.
Case Date:May 27, 1903
Court:Supreme Court of Missouri
 
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Page 1024

74 S.W. 1024 (Mo. 1903)

175 Mo. 190

BROYHILL

v.

NORTON, Appellant

Supreme Court of Missouri, First Division

May 27, 1903

Appeal from Clay Circuit Court. -- Hon. J. W. Alexander, Judge.

Affirmed conditionally.

Bremermann & Wherry for appellant.

(1) The petition is fatally defective and does not state a cause of action. Cole v. Holiday, 4 Mo.App. 98; 4 Am. and Eng. Ency. Law (2 Ed.), p. 898; Martin v. Patton, 1 Littell (Ken.) 234; Greenup v. Storer, 3 Gilm. 212; 1 Estee's Pleadings and Forms (2 Ed.), 502, note 11; 1 Boone's Estee's Pleadings (4 Ed.), pp. 738 and 739, secs. 1365 and 1367; 3 Ency. Pleading and Prac., p. 688; 2 Parsons on Contracts (6 Ed.), pp. 63-64; Worcester's Unabridged Dictionary; Fible v. Coplinger, 13 B. Mon. (Ky.) 464; Davis v. Slagle, 27 Mo. 600. (2) The court committed prejudicial error in admitting evidence for plaintiff. Cole v. Holiday, supra. (3) The court committed prejudicial error in refusing to admit defendant's evidence. (4) The court committed error in giving instructions, 1, 2, and 3 for plaintiff. Sharp v. Johnson, 59 Mo. 557; Glascock v. Shell, 57 Tex. 215; 3 Ency. Pl. and Prac., 688 and 689; Dupont v. McAdow, 6 Mont. 226; Goddard v. Westcott, 82 Mich. 180; 4 Am. and Eng. Ency. Law (2 Ed.), 898; Blasland v. Hilig, 70 Mo.App. 301; Ragan v. K. C. So., 144 Mo. 623; Hammond v. Sancer, 84 Ind. 6; Duncan v. Van Horn, 16 Iowa 476. (5) The court erred in refusing defendant's instructions 5, 6 and 7. Davis v. Slagle, supra; Link v. Westerman, 80 Mo.App. 592; May v. Crawford, 150 Mo. 504. (6) The verdict was grossly excessive and the result of passion, partiality and prejudice on the part of the jury, and motion for new trial and motion in arrest should have been sustained. Koeltz v. Bleckman, 46 Mo. 322; Doty v. Steinberg, 25 Mo.App. 334; Matthews v. Railroad, 26 Mo.App. 75; Unterberger v. Scharff, 51 Mo.App. 102; Ellis v. Construction Co., 60 Mo.App. 69; Gurley v. Railroad, 104 Mo. 211; Chitty v. Iron Co., 148 Mo. 64.

Kagy & Horn for respondent.

(1) The petition contains every element necessary to state a good cause of action. Among other things it states "that said defendant has abandoned plaintiff and informed her that he does not intend to consummate said contract and does not intend to marry her, as by the terms of the contract he was bound to do." It will not be said by this court that when defendant abandoned plaintiff and informed her that he did not intend to marry her, she must, after such declaration, get upon her knees and beg him to do so. (2) A request to marry may be dispensed with where the defendant has refused to be married on the date fixed. Reed v. Clark, 47 Cal. 194; Kelly v. Brennan, 18 R. I. 41. Nor is a request necessary when the defendant has broken off the engagement. Willard v. Stone, 7 Cow. (N. Y.) 22; McCormick v. Robb, 24 Pa. St. 44; Wagonsellar v. Simmer, 97 Pa. St. 465; Burk v. Sharer, 92 Va. 345; Olson v. Salberson, 71 Wis. 663. (3) Instruction 6 does not state the law as it is. It states that the mere fact that plaintiff visited assignation houses raises the presumption that she visited them for a lewd purpose. That is not the law. It omits the element of knowledge. If that be the law, any pure woman visiting a place of that kind without knowledge of the character of the house, however innocent she may be, will be written down as a prostitute. The evidence shows why she went there. In the case at bar there was no evidence upon which to base these instructions and no evidence that the plaintiff visited such a house, knowing its character, nor is there any evidence that the place visited was of ill repute. The evidence shows that she went there for a lawful purpose, in pursuit of employment. In any event, it could only be given in mitigation of damages, and the instruction omits this element. A search of the record will not show a scintilla of evidence to support this instruction. If she had been guilty of criminal relations with other men, the rule might be different; but the instruction says: "Guilty of unchaste conduct with other men." In that case such fact, if true, is not a defense. A woman may be guilty of unchaste conduct without being criminal. Boynton v. Kellogg, 3 Mass. 189; Burnett v. Simpkins, 24 Ill. 264. (4) The plaintiff sought to recover under a breach of contract of marriage. The defendant brought out that she was in the family way, and he was the cause of it. He was guilty of rape. This was brought out by his own testimony for no purpose other than to blacken her character, because of his own act. This did, and justly so, aggravate the damages. Southard v. Rexford, 6 Cow. 254, cited in Davis v. Slagle, 27 Mo. 603. We suggest, however, that if in the opinion of this court the damages awarded are excessive, plaintiff will enter a remittitur in such sum as the court may order. That this course is proper we cite Chitty v. Railroad, 166 Mo. 435.

VALLIANT, J. Robinson, J., absent.

OPINION

Page 1025

[175 Mo. 194] VALLIANT, J.

Breach of promise of marriage.

The petition is as follows:

"The plaintiff, Lena Broyhill, for her cause of action against the defendant, H. B. Norton, states: That on the 5th day of August, 1899, she was and now is a single woman and unmarried. That on said date the said defendant proposed to marry plaintiff, and plaintiff accepted said proposition of marriage, no definite time having been fixed for the consummation of their nuptials. That in pursuance of said contract plaintiff made preparations to consummate the same at such time as the said defendant and she might determine upon, and said defendant informed plaintiff that as soon as he had completed the construction of a house in Westport, Missouri, they would consummate said contract; and plaintiff states that said house has been completed, yet the defendant, notwithstanding his promise to make plaintiff his wife, has failed, neglected and refused, and stills fails, neglects and refuses to carry out said contract, as by the terms thereof he was bound to do. That said defendant has abandoned plaintiff and informs her that he does not intend to consummate said contract, and does not intend to marry plaintiff, as by the terms of his contract he was bound to do. Plaintiff states that it has become publicly known, and particularly among her relatives and friends, that she and the said defendant were engaged to be married, and the failure of said defendant to consummate said marriage has placed plaintiff in an embarrassing position; has caused her great mental suffering; and by reason of the premises plaintiff states that she has been damaged in the sum of twenty-five thousand dollars. Wherefore plaintiff demands judgment against said defendant for said...

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