Arkansas

• Decision Date: 12 April 1915
• Docket Number: 308
• Citation: 176 S.W. 333,117 Ark. 544
• Parties: ARKANSAS
• Court: Arkansas Supreme Court

176 S.W. 333

117 Ark. 544

ARKANSAS

No. 308

Supreme Court of Arkansas

April 12, 1915

Appeal from White Circuit Court; J. M. Jackson, Judge; affirmed.

Judgment affirmed.

S. Brundidge and J. W. & J. W. House, Jr., for appellant.

1. The plaintiff, being an infant, could sue only by guardian or next friend. She had no right to bring the suit in her own name, and the court had no jurisdiction. The statute is mandatory and jurisdiotional. Kirby's Dig., § § 6021, 6022; 9 Am. & Eng. Ann. Cas. 1114; 71 Ark. 258; 50 Ark 480; 63 Ark. 155; 55 Ark. 29; 87 Ark. 184.

2. At the time the alleged contract of marriage was entered into the plaintiff was incapable of entering into a valid contract. The verdict is, therefore, contrary to the law and the evidence. 4 Ruling Case Law, 143, § 1; Kirby's Dig., § § 5171, 5172; 43 Ark. 185; 59 Ark. 4; 38 Ark. 278; 13 Abb. Prac. (N. S.) 402; 51 S.W. 503; 42 Ill.App 511; 37 Mich. 65.

3. Instructions which are abstract and misleading are necessarily prejudicial. The court therefore erred in giving an instruction which allowed the jury to assess damages for bodily pain, blighted affections, disappointed hopes, loss of friends, shame, disgrace, humiliation and loss of opportunity to marry, when, in fact, there was no testimony whatever introduced directed to or touching these matters. 111 Ark. 140, and cases cited; 86 Ark. 91.

4. If the appellant promised to marry the plaintiff solely on consideration that she would have sexual intercourse with him, this was an immoral and nonenforceable contract, and the court erred in refusing appellant's request so to instruct the jury. 4 Ruling Case Law 145, § 3; 20 Am. & Eng. Ann. Cas. 1352; 87 Ark. 175; 174 U.S. 639; 32 Ark. 619; 74 S.W. 283; 11 Pa.St. 316; 54 Cal. 51, 35 Am. Rep. 67; 16 Abb. Prac. (N. S.) 26; 92 Va. 345, 23 S.E. 749; 26 Barb. 615.

5. The prejudicial effect of counsel's argument (referred to in the opinion) was not removed nor cured by the admonition of the court. It was wholly out of the record, and could have had no other effect than to cause the jury to return the excessive verdict that was returned in this case. 89 Ark. 64; 103 Ark. 358; 95 Ark. 237.

J. N. Rachels and John E. Miller, for appellee.

1. Appellant's objection to appellee's want of capacity to sue, because of her minority, ought to have been made in the lower court. The complaint showed on its face that the plaintiff was a minor, yet appellant failed to raise the question either by demurrer or in his answer. He can not raise the question here for the first time. Kirby's Dig., § § 6093-6096; 108 Ark. 490; 112 Ark. 332; 107 Ark. 74; Id. 353; 103 Ark. 387; Id. 613; 101 Ark. 250; 94 Ark. 390; 90 Ark. 531; 95 Ark. 593; 86 Ark. 608; 105 Ark. 353; 97 Ark. 623; Id. 560. The court unquestionably had jurisdiction. 31 Ark 684; 43 Ark. 33; 77 Ark. 498; 98 Ark. 394; 17 Am. & Eng. Enc. of L. 10591063; 22 Cyc. 644, 645, 685; 1 Ruling Case Law, 52, 53.

2. If plaintiff was a minor at the time appellant made the contract of marriage with her, he knew it, and negotiated at his peril. The defense of minority is personal in its nature, and is to be taken advantage of only by the infant himself. 4 Ruling Case Law, 165; 4 Standard Procedure, 548; 16 Am. & Eng. Enc. of L. 265; Id. 296; 31 Ark. 364; Rodgers on Domestic Relations, § 10; 1 A. K. Marshall (Ky.) 76; 10 Am. Dec. 709; 5 Cowen (N. Y.) 475, 15 Am. Dec. 475; 7 Cowen 22, 17 Am. Dec. 496; 63 Am. Dec. 534; 5 Sneed (Tenn.) 659.

3. If there had been any error either of form or substance in the instruction with reference to anguish of mind, bodily pain, blighted affections, etc., it should have been met by specific objection, which was not done. But the instruction was fully warranted by the evidence, and was correct. 84 Ind. 3; 42 Mich. 346; 4 N.W. 8; 36 Am. Dec. 442; 2 Kan.App. 764, 44 P. 47; 31 Ark. 696; 4 Ruling Case Law, 155, § 14; Id. 156, § 15; 76 S.E. 454, 43 L. R. A. (N. S.) 556; 41 L. R. A. (N. S.) 841.

4. There was no evidence on which to base the sixth instruction requested by appellant. Under the evidence, there either was or was not a promise of marriage, and if there was such a promise, it preceded the seduction accomplished on the strength thereof. The court was right in refusing to give the instruction.

5. Counsel's argument was legitimate. Nevertheless, the court sustained appellant's objection to it, and nothing more was asked of the court. 96 Ark. 87; 84 Ark. 128; 77 Ark. 64; 74 Ark. 256.

OPINION

MCCULLOCH, C. J.

This is an action to recover damages for breach of an alleged contract for intermarriage between the parties. The complaint sets forth the allegations as to the contract of marriage and breach thereof, and also alleges seduction as a matter in aggravation of the alleged breach of contract. There was a verdict in favor of the plaintiff and defendant has appealed.

It is alleged in the complaint, and established by proof, that the plaintiff was about sixteen years of age at the time defendant promised to marry her and seduced her, and was seventeen years old on the day of the trial in the circuit court. She instituted this action in her own name without a guardian or next friend. No objection was remade below in any form as to plaintiff's incapacity to sue in her own name, and that question is raised here on appeal for the first time. It is insisted that under our statute, which provides that the notion of an infant "must be brought by a guardian or next friend" (Kirbys Digest, § 6021), the incapacity of an infant to sue in his own name is jurisdictional, and that the question of jurisdiction may be raised at any stage of the proceedings, even on appeal to this court. The contention is, we think, unsound. The code of civil practice provides, as one of the grounds for demurrer, that the plaintiff has not legal capacity to sue, and that when such matter does not appear upon the face of the complaint, the objection may be made by answer (Kirby's Digest, § § 6093-6096). The last section just cited provides that "if no such objection is taken, either by demurrer or answer, the defendant shall be deemed to have waived the same." It thus appears that the statute itself provides that the incapacity of the plaintiff to sue may be waived by the defendant, and is waived by failing to take advantage of the defense at the time and in the manner pointed out by the statute. The judgment is not void because of the plaintiff's incapacity to sue, but that defect only constitutes error which calls for a reversal of the judgment, if taken advantage of in apt time. It has always been the rule of this court that judgments against infants are not void because of the omission to appoint a guardian, but are merely voidable and can only be avoided on appeal or writ of error or other direct proceedings authorized by statute. Trapnall's Admx. v. State Bank, 18 Ark. 53. The authorities generally lay down the rule that the defendant waives the objection that the plaintiff is an infant, and suing without guardian or next friend, by pleading to the merits and by failing to raise the objection by demurrer or answer. 22 Cyc. 645; 1 R. C. L. 52.

It is next insisted that the alleged contract of marriage lacked mutuality because of the incapacity of the plaintiff to enter into a contract, and that the alleged breach of it can not be made the basis of a right of action. The contract of an infant is not absolutely void, but is only voidable at the instance of the infant himself. This court, in Bozeman v. Browning, 31 Ark. 364, said: "As a general rule, no one but the infant himself, or iris legal representatives, executors and administrators, can avoid the voidable acts, deeds and contracts of an infant, for, while living, he ought to be the exclusive judge of the propriety of the exercise of a personal privilege intended for his benefit." The numerous authorities cited by counsel for plaintiff on their brief show that the rule is thoroughly established elsewhere, and that only the infant can take advantage of that incapacity to contract.

Error is assigned in the refusal of the court to give the following instruction requested by defendant:

"The jury are instructed that if you find from the evidence that the defendant promised to marry the plaintiff solely on consideration that she should permit him to have sexual intercourse with her (solely on the consideration that she would permit him to have intercourse with her), and as a result of such intercourse she became pregnant, is illegal and can not be enforced in law; and in this case, if you find from the evidence that the defendant did promise to marry the plaintiff upon the consideration that she allow him to have sexual intercourse with her, and that there was no other consideration for such promise, then your verdict will be for the defendant."

The instruction just quoted announced the correct principle of law, and should have been given to the jury if there was evidence which justified it, for "an immoral consideration will not support a promise of marriage, and consequently if a promise to marry is on consideration that the promisee shall before marriage have sexual connection with the promisor, it is void." 4 R. C. L. 145. See, also, Connolly v. Bollinger, 20 Am. & Eng. Ann. Cases 1352; Burke v. Shaver, 92 Va. 345, 23 S.E. 749; and other authorities cited on the brief of counsel for defendant.

The facts of this case did not, however, call for the submission to the jury of that issue, for there is no testimony which would have justified the jury in reaching the conclusion that the alleged promise of marriage was made by defendant in consideration of plaintiff granting him the privilege of sexual intercourse with her. Plaintiff was a domestic servant in the household of defendan...