Bird v. Thompson

• Decision Date: 26 November 1888
• Citation: 9 S.W. 788,96 Mo. 424
• Parties: Bird v. Thompson, Appellant
• Court: Missouri Supreme Court

9 S.W. 788

96 Mo. 424

Bird v. Thompson, Appellant

Supreme Court of Missouri

November 26, 1888

Appeal from Carroll Circuit Court. -- Hon. J. M. Davis, Judge.

Affirmed.

Hale & Sons, Prosser Ray and A. M. Hough for appellant.

(1) Under the first instruction, the jury were not confined to the damages which plaintiff may have sustained by reason of any breach of the alleged contract of marriage. The damage must result from defendant's breach of contract. Clark v. Fairley, 24 Mo.App. 429; Brown v. Road Company, 89 Mo. 152; Luckie v. Railroad, 67 Mo 245; Cunningham v. Railroad, 70 Mo. 202. (2) The second instruction is vague and misleading in that it does not appear from said instruction whether its object is to call the attention of the jury to a contract of marriage alleged to have been made on September 29, 1881, or to a previous contract to be married on that date. Legg v Johnson, 23 Mo.App. 590; Donahoe v. Railroad, 83 Mo. 560. (3) The third instruction is erroneous in that it allows recovery for an alleged seduction without reference to the alleged contract. Jones v. Jones, 57 Mo. 138; State v. Smith, 53 Mo. 267; Koenig v. Life Association; Hassett v. Rust, 64 Mo. 325; Clark v. Fairley, 24 Mo.App. 429. (4) The verdict of the jury in this case is insufficient to support the judgment. It is neither a general nor special verdict. See R. S. 1879, secs 3628, 3629, 3632. This is an action for the recovery of money only, and there should have been a general verdict. 3 Gra. & Wat. on New Trials, 1384 et seq.; Fenwick v. Logan, 1 Mo. 283; Easten v. Collier, 1 Mo. 299; Jones v. Snedecor, 3 Mo. 275; Pratt v. Rogers, 5 Mo. 52; Wells v. Thompson, 61 Mo. 415; Schweickhardt v. St. Louis, 2 Mo.App. 571; Hewson v. Tootle, 72 Mo. 636.

Blankenship and Quissenberry & Holliday for respondent.

Norton, C. J. Ray, J., absent.

OPINION

Norton, C. J.

This is an appeal from the judgment of the circuit court of Carroll county in favor of plaintiff for five thousand dollars damages for breach of a marriage contract. The points relied upon by counsel for reversal are: First, that the instructions given on behalf of plaintiff are erroneous; second, that the verdict of the jury was not responsive to the issues made and did not warrant the court in entering judgment upon it.

The instructions complained of, as they appear in the record, are as follows:

"If the jury believe from the evidence, that a mutual promise was entered into, on or about the twenty-ninth day of September, 1881, by and between plaintiff and defendant, by which each agreed to marry the other, and that defendant failed and refused to carry out said contract and engagement, and further believe from the evidence that plaintiff has always been ready and willing to carry out said engagement on her part, and that defendant has failed and refused to carry out said engagement upon his part, then they will find for the plaintiff and assess her damages at whatever amount they may believe from the testimony she has sustained, not exceeding the sum of ten thousand dollars.

"If the jury find from the evidence that plaintiff has sustained any damages, then in determining the amount they may assess such sum as in their judgment, under all the circumstances of the case, may be a proper indemnity to her for the injury she has suffered in her feelings, affections and wounded pride, as well as the loss of marriage, not exceeding ten thousand dollars.

"That if the jury believe, from the evidence, that plaintiff and defendant contracted to marry each other, and that defendant failed and refused to marry plaintiff without a justifiable cause, they must find for the plaintiff.

"If the jury believe, from the evidence, that plaintiff has sustained damages, then in assessing the damages the jury are not limited to the mere pecuniary damage which the plaintiff may have sustained, but may take into consideration the injury to her feelings; and may in the case find for the plaintiff such amount, not exceeding ten thousand dollars, as they may believe, from the facts and the circumstances, the case requires.

"Any engagements which plaintiff may have entered into to marry Turpin prior to 1880, and which the jury may believe, from the evidence, was broken off, will not prevent a recovery in this case, provided the jury may believe, from the evidence, that subsequently defendant and plaintiff promised to marry each other on the twenty-ninth of September, 1881.

"The court instructs the jury that if they believe, from the evidence, that a mutual promise and engagement was entered into between the plaintiff and defendant, on or about the twenty-ninth day of September, 1881, to marry each other, and that, under promise of marriage, the defendant seduced the plaintiff, then in determining the amount of damage, if any, to which they may believe the plaintiff is entitled, they may take that fact, with all the others, into consideration."

I. It is complained of the above instructions that they give too much latitude to the jury in estimating damages, and that they allowed the jury to find damages without finding that there was a marriage contract and breach of it. Considering the instructions together as a whole, we do not think it can fairly be said that they are subject to the objections made. They clearly...