Broyhill v. Norton

Decision Date27 May 1903
PartiesBROYHILL v. NORTON, Appellant
CourtMissouri Supreme Court

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

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 sum of twenty-five thousand dollars and for her costs of suit."

There was a demurrer to the petition on the ground that it did not state facts sufficient to constitute a cause of action, which was overruled, whereupon defendant filed for answer a general denial. When the cause came on for trial defendant objected to any evidence in support of the petition on the grounds: first, that it did not state facts sufficient to constitute a cause of action; second, there was no allegation of a mutual promise of marriage; third, no allegation that plaintiff was ready, able and willing to marry; fourth, it is not alleged that plaintiff requested defendant to marry her. The objection was overruled and defendant excepted.

The testimony on the part of plaintiff tended to show as follows:

At the time of the trial plaintiff was twenty-six years old and had never been married. She was living with her mother in Kansas City. Defendant came to board with her mother in January, 1899. He began at once to show plaintiff attention; his interest in her apparently increased and his attentions became more pointed until in August of that year, when he had taken her out to a park in the city, their conversation turned on mutual friends of theirs who were engaged to be married, and in that connection he said to her that he had concluded after careful study that if she was willing they would in the spring go to Mr. Wilcox's and have her to take the name of Mrs. Norton. Mr. Wilcox was the preacher of the church in Kansas City which they sometimes attended together. She replied that she was willing. He said that he would finish paying for a house he was building or repairing in Westport on the 12th or 15th of June next, and they would then get married. After that he took her out to Westport several times to see the house and told her they would live there when they were married. During all the time after their engagement in the park until the latter part of January, 1900, his attentions continued with demonstrations of affection. Upon one occasion, however, in January, 1900, a young woman visited the defendant at the house of plaintiff's mother at night, and was received in his room; she was taken sick during the night and defendant requested plaintiff to wait on her or render her a particular service, which the plaintiff refused to do. The next day defendant told the plaintiff he would not marry her, giving as his reason her refusal to wait on the young woman mentioned. She told him she thought it was his duty to marry her and requested him to do so, but he refused. Sometime after that the plaintiff's mother spoke to defendant, and he told her that he would not marry the plaintiff.

The testimony on the part of the defendant, which on the main issue was chiefly his own, was to the effect that he never proposed marriage to the plaintiff and never promised to marry her. He admitted that he bestowed amorous attentions on her, but denied that they were of honorable purpose. Running through his testimony was a strong innuendo that he had sustained an immoral relation with her. (This,...

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