Beans v. Denny
| Decision Date | 26 October 1908 |
| Parties | MARY BEANS v. ROBERT J. DENNY, Appellant |
| Court | Iowa Supreme Court |
REHEARING DENIED TUESDAY, JANUARY 26, 1909.
Appeal from Des Moines District Court.--HON. JAMES D. SMYTH, Judge.
THE defendant appeals from a judgment for damages resulting from an alleged breach of promise to marry.
Affirmed.
Seerley & Clark and Blake & Wilson, for appellant.
Poor & Poor, J. E. Maley, and Charles Willner, for appellee.
The plaintiff, who was born in 1864, began work as housekeeper for defendant, sixteen years her senior, in 1900. His wife who was then an invalid, died in 1901. There were three children, one away at school, and the others, aged sixteen and fourteen, at home. Plaintiff continued in his employment as housekeeper, with some intermissions, until June, 1906, and in September following this action for damages because of his alleged breach of promise to marry her was begun. Such promise is said to have been made in June, 1903, to be consummated after his daughter had finished school in 1905, and performance then postponed until the spring of 1906. All this was denied by defendant, who pleaded, by way of mitigation, that the plaintiff had become ill tempered and had asserted hatred for him and his children, and, in bar, "that plaintiff was not and is not now in a physical condition by reason of disease to fulfill the duties of wife and mother, and that she should not marry, and defendant pleads said condition of plaintiff as a bar to this suit."
I. Previous to the answers defendant moved for security of costs on the ground that plaintiff was a nonresident of the State, supporting the same by his affidavit. A counter affidavit of plaintiff was then filed. Six days later defendant filed six additional affidavits in support of the motion. On motion of plaintiff, these were stricken from the files. Thereupon defendant withdrew his motion, and two days later filed another for security of costs with affidavits of like import, and by the same parties who had made those stricken. Upon motion of plaintiff, the second application for security of costs was stricken from the files; and this ruling is complained of. In withdrawing the first motion no right to file another was reserved or granted, and the last was filed without leave of court. The withdrawal of the one and filing of another manifestly was to avoid the effect of the statute exacting that all affidavits accompany such a motion. Section 3847 of the Code, as amended by chapter 100. Acts 27th General Assembly, provides: "That the application for such security shall be by motion, filed with the case, and the facts supporting it must be shown by affidavits annexed thereto, which may be responded thereto by counter affidavits on or before the hearing of the motion and each party shall file all his affidavits at once, and none thereafter." In other words, the party moving for security for costs must present all his proof at the time of filing the motion, and none thereafter. To permit a party who has not so presented his affidavits to withdraw the motion, and refile it, accompanied with those at first omitted, would defeat the very design the lawmakers must have had in inserting this condition; that is, the prompt disposition of the application on the record as first made by the parties, and the avoidance of delay by an extended controversy over a collateral matter not in any way involving the merits of the case. Possibly the court for good cause might permit the withdrawal of such a motion and the filing of another; but, if so, the evasion of the effect of this statute and a previous ruling would not be good cause. There was no abuse of the discretion necessarily exercised by the district court in matters of this kind.
II. As tending to prove defendant's pecuniary condition, McIntire, a brother-in-law of plaintiff, residing at Middleton, a village fourteen miles from Burlington, was allowed, over objection, to testify to defendant's wealth as reputed in Des Moines County. The witness had been acquainted with him for forty-six years, during all but four years of which time he had resided in that county. His cross-examination, as well as that of the defendant, indicated that the latter was well known in that and other portions of the county, and, though he had resided temporarily at Galesburg, Ill., for four years, his home was at Burlington, where he had lived a long time previous, and that he owned and supervised several farms in Des Moines and Louisa Counties. Under the circumstances disclosed, it was not error to receive this testimony.
III. One Brooks testified that defendant had said to him that he was owner of one thousand acres of land valued at $ 100 per acre, that he knew his reputation as to wealth in Galesburg, Ill., and that he was reputed to be worth $ 100,000. Exception was taken to the admission of this evidence on the ground that defendant was but a temporary resident of that city for the purpose of educating his children, with his home in Burlington. It was enough if he had lived there long enough to establish a reputation in the respect testified to, and that the witness knew what it was. If want of knowledge appeared on cross-examination after the ruling of the court, the remedy was by motion to strike the evidence, as the ruling was correct when made. There was no error.
IV. Defendant offered in evidence a deed of one hundred and sixty acres of land executed to him in March, 1901, by Holden, and another of forty acres executed to him February 5th of the same year by Prindle. On objection, the portions of the instruments stating the considerations were excluded, and defendant was not allowed to testify what he had paid for the land. The ruling was correct. Six years had elapsed since the purchase, and in the meantime he had improved the land by tiling it and by the erection of buildings thereon. That the price for which land was recently sold may be shown as tending to establish its value is too well established to call for citation of authority; but, when the sale is somewhat remote and valuable improvements have been made since, it goes almost without saying that the price paid would not furnish any aid in determining or estimating the present value. The ruling has our approval.
V. The plaintiff was treated at a hospital in March, 1904. On the trial several physicians, upon hypothetical questions embracing the hospital record and treatment, and facts as to her physical condition which some evidence tended to show, expressed the opinion that she was then afflicted with syphilis, and was being treated for that disease. On the other hand, it appeared that, on application of defendant, three physicians were designated by the court to examine her, and, after doing so, they reported their inability to discover any traces of this disease. Other evidence was convincing that she had not been afflicted therewith. The record was such, however, as to raise an issue as to whether she was then suffering therefrom, and, as there was a difference of opinion as to whether the disease is curable, and the time required to effect a cure, if possible, an issue as to whether she was in good health at the time of the alleged breach also was raised.
The court instructed the jury that
This instruction is criticized (1) for exacting a finding of want of knowledge at the time of the alleged engagement, (2) in that a finding that the disease rendered plaintiff unfit for marriage is made essential, and (3) in that the jury are told that even though plaintiff was afflicted with the disease in 1904, if she was cured by the time fixed for the marriage, this would not excuse defendant from fulfilling his promise. As there was no evidence that plaintiff was afflicted with the disease in June, 1903, or bearing on defendant's knowledge thereof, the portion of the instruction first criticized was superfluous, but could not have been prejudicial to appellant; nor was there any conflict in the evidence as to this disease rendering a person unfit for matrimony.
The court might well have omitted the qualifying clause, and directed the jury that a person is always excusable for declining to carry out his promise of marriage to one afflicted with syphilis, unless made with knowledge of this condition. As the evidence was conclusive, no prejudice could have resulted from adding the qualifying clause. See, as bearing on this subject, Trammell v. Vaughan, 158 Mo. 214 (59 S.W. 79, 51 L. R. A. 854, 81 Am....
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