Benson v. Williams

• Decision Date: 15 June 1948
• Docket Number: 47199.
• Citation: 32 N.W.2d 813,239 Iowa 742
• Parties: BENSON v. WILLIAMS.
• Court: Iowa Supreme Court

32 N.W.2d 813

239 Iowa 742

BENSON v. WILLIAMS.

No. 47199.

Supreme Court of Iowa

June 15, 1948

Life & Davis, of Oskaloosa, for appellant.

Palmer & Spencer, of Oskaloosa, for appellee.

SMITH Justice.

That there had been an engagement to marry is, under the Record, a verity. Plaintiff testifies to it and defendant, in spite of his sweeping general denial, does not in evidence deny it but impliedly admits it.

At time of trial plaintiff was 24 years old and had never been married defendant was 38 and a widower with two young children residing with his parents on a farm. At the time the engagement was entered into plaintiff was working, and had for nearly three years worked, in the Williams home. The pleadings are brief. The petition alleges:

'That about the month of December, 1945, the Plaintiff and Defendant entered into an oral agreement to marry, but thereafter the Defendant broke his promise to the Plaintiff and refused to marry this Plaintiff; That by reason thereof the Plaintiff is damaged in the sum of Five Thousand ($5,000.00) Dollars, no part of which has been paid.'

The answer is even shorter:

'Comes now the defendant in the above entitled action and denies each and every allegation of plaintiff's Petition and demands strict proof thereof and requests trial of the issues of this cause by a jury.'

There is little conflict in the evidence. The engagement was, at defendant's suggestion, kept secret from his parents. However, prior to January 1, 1946, it had reached the stage where the bridesmaid and minister had been spoken to and the parties had submitted to blood tests by a doctor in Oskaloosa, selected and paid for by defendant. The blood samples were, by the doctor, sent to Iowa City for analysis.

The parties first talked that their marriage would occur on New Year's Day but the reports from the blood tests were not back in time. The day following New Year's plaintiff learned from the doctor that the report on defendant's test was back and was all right. The next day the doctor told plaintiff that she would have to have her's taken over again because they couldn't test it,--'either the tube had had water in it or had been shaken too much.'

Thereupon plaintiff, who was at her own parents' home by that time, advised defendant of the situation and he came to see her. He told her his folks didn't approve of the marriage and that his mother had threatened to kill herself if it was consummated. 'If I remember right his mother said I wasn't good enough to raise the children.' He had not, before that time, told his parents of the comtemplated marriage.

There was nothing determined at that time as to their future plans. They saw each other January 5, 6 and 9, and again later in January. Defendant (on one of these occasions) 'wanted to pay for my dress which I had purchased at Alsop's and paid about $17. I believe he spoke about me taking a trip and he would pay for it, he just wanted me to get away.'

At their meeting 'later in January' at plaintiff's home 'he kind of thought he would like to wait again until fall. I asked him if he loved me more than his mother and he said yes. * * * I believe it was March I next saw him after that at my home. My mother was there. He wanted to drop everything then. In reply to that I said that I still thought we ought to go ahead. He said at that time it was all over between us.'

In the foregoing we have followed the testimony of plaintiff. She says that when she told defendant about the doctor's report they talked 'with regard to having another blood test. * * * He hadn't made up his mind for sure whether he wanted to go ahead with it or not. * * * I thought maybe we might go to Iowa City the next day to take a blood test * * *. He didn't come right out and say anything as to that * * *. I don't just remember exactly what he said after I told him I would go to Iowa City to have another blood test taken but then he thought we should wait. He didn't want to get married while his folks felt the way they did. We didn't plan to have another blood test taken until we found out how his parents were going to act. He told me to wait awhile and see how things were going to come out and that we would have another one taken.'

At their March 23rd conversation plaintiff says: 'I asked him something about going with another girl * * *. He told me he had been seeing her and that he had a date with her' for the following Sunday night. 'I felt badly that the marriage was off. I cried about it after I went into the house.'

It is to be said further in connection with plaintiff's testimony concerning this March conversation that on cross-examination she testified:

'Q. And I think you stated that * * * Rex * * * said he wanted to drop everything * * *?' A. In March he did, yes.

'Q. And you said to him at that time that that was all right? A. Well, it had to be all right.

'Q. You said to him it was all right, didn't you girl, in that conversation to him at that time? A. Well, I suppose I did.'

Defendant does not deny plaintiff's testimony except that he says plaintiff never asked him to take her to Iowa City or signified any willingness to take another blood test. He admits his parents' opposition to the marriage and says his mother told him: 'If you knew what I know about her that she has told me, that you wouldn't want to marry her either.' He says plaintiff told him 'something was wrong' with the blood specimen. He admits she told him the doctor said 'it had been damaged in transit or that it couldn't be tested.' He also says: 'I didn't understand that it had come out positive and that she was not eligible to marry * * *. I never asked her to have another one taken. It was not because my parent were opposed to the marriage. After the test came back I felt I had a little ground that I might not want to go ahead with it.'

We have set out the testimony at some length in order to furnish the background of defendant's contentions on the trial and on this appeal. The jury returned a verdict against defendant for $2500 and he appeals from the resultant judgment.

Most of the errors he assigns and argues are related to appellant's fundamental misconception of the effect of the Iowa statute requiring physician's certificate as to freedom of both parties from syphilis before issuing a marriage license (Ch. 596, Code 1946); the others pertain to the question of damages and alleged misconduct of plaintiff's attorney in final argument to the jury.

I. At the close of plaintiff's case defendant moved for a directed verdict, contending that plaintiff had not shown herself 'competent and capable of establishing a complete and binding contract to marry.' The motion was overruled and not renewed at the close of all the evidence.

However, a similar contention was made by requests for instructions which would have been in effect a direction. They were denied by the trial court. The theory underlying this contention is that since the statute requires a physician's certificate showing both parties to be free from syphilis (as a condition precedent to issuance of the license) and since no such certificate was procured by plaintiff, she could not recover in this action. The argument assumes that this statute becomes a part of every contract to marry and that as a condition precedent to recovery in this action plaintiff had to produce such certificate.

Plaintiff's petition did not allege her competency in that respect. No attack was made on it by defendant on that ground. He pleaded a mere general denial. This probably is a complete answer to his contention here. If the burden was on plaintiff to prove her competency she should have pleaded it. In that case her failure to so plead would have rendered her petition vulnerable to attack and failure to attack by an appropriate motion would waive the defect. Advantage could not be first taken of it by request for instructions. Dunn v. Wolf, 81 Iowa 688, 690, 47 N.W. 887; Clark v. Ross, 96 Iowa 402, 407, 65 N.W. 340.

But the whole discussion misconceives the legal effect of the statute. It does not become a part of the engagement contract. By that contract neither party makes any representation as to his ability to procure a doctor's certificate, nor need plaintiff in an action of this kind, plead or assume the burden of proving his ability to qualify for a marriage license under it. If it develop that either party cannot so qualify probably that would justify the other in terminating the engagement. But surely in such an event, in a resulting action for breach of promise, the burden of pleading and proof of the fact would be upon the defendant who relied on it as such justification.

We find no enlightening decision under our own or any comparable statute. Nor do we find, nor is there cited to us, any very helpful authority upon which to base a conclusion. In Vierling v. Binder, 113 Iowa 337, 85 N.W. 621 622, defendant attempted to contend (without pleading it as a defense) that plaintiff's physical condition was such as to constitute a bar to the action for breach of the alleged promise to marry. We held 'the matter should have been pleaded by way of confession and avoidance' and could not be first raised by request for instructions. That, of course, was not entirely similar to the present situation. Yet the decision is in point. The contention there involved physical condition that would incapacitate plaintiff for the marriage state. The contention here is that plaintiff failed to furnish statutory proof of freedom from a disease that would unfit her for a legal marriage. There is an analogy between the two cases. We think in either the defense would have to be pleaded in avoidance. See Welker v. Wallace, 117 Wash., 52, 200 P. 561; 8...