Bowes v. Sly

• Decision Date: 09 October 1915
• Docket Number: 18,578
• Parties: ALICE BOWES, Appellee, v. N.W. SLY, Appellant
• Court: Kansas Supreme Court

152 P. 17

96 Kan. 388

ALICE BOWES, Appellee, v. N.W. SLY, Appellant

No. 18,578

Supreme Court of Kansas

October 9, 1915

Decided July, 1915.

Appeal from Saline district court; DALLAS GROVER, judge.

Judgment reversed and cause remanded.

W. S Roark, of Junction City, Thomas L. Bond, C. W. Burch, and B I. Litowich, all of Salina, for the appellant.

R. A. Lovitt, of Salina, J. K. Codding, and C. H. Codding, both of Leavenworth, for the appellee.

Marshall J.

OPINION

Per Curiam

In an action to recover damages for breach of promise of marriage and for seduction plaintiff recovered a judgment from which defendant appeals. The record shows errors in the instructions and also erroneous admission of testimony which manifestly resulted in an excessive verdict. Over defendant's objections, plaintiff was permitted to prove that as a result of the seduction she became infected with a disease; that she became pregnant, from which miscarriage and sickness resulted, all of which the instructions authorized the jury to consider in determining the amount of damages. In their special verdict, the jury allowed $ 8000 damages for these injuries alleged to have been sustained as a result of the seduction. In Dalrymple v. Green, 88 Kan. 673, 129 P. 1145, 43 L. R. A., n. s., 972, it was held that neither the promise of marriage nor the breach thereof can be regarded as the proximate cause of pregnancy or miscarriage or sickness resulting therefrom.

The court properly refused to require plaintiff to separate her causes of action since the petition stated but one. There is no merit in the claim that a demurrer to the evidence should have been sustained on the ground that plaintiff's testimony contained contradictions. (Acker v. Norman, 72 Kan. 586, 84 P. 531; Valley Township v. Stiles, 77 Kan. 557, 560, 95 P. 572; Madden v. Stegman, 88 Kan. 29, 30, 127 P. 524; Smith v. Schriver, 91 Kan. 582, 585, 138 P. 584; Terry v. Gravel Co., 93 Kan. 125, 129, 143 P. 485.) Nor is there merit in the contention that the testimony of physicians called by defendant must be regarded as conclusive, or that such expert testimony established the falsity of plaintiff's evidence. (Daniels v. Dick, 95 Kan. 72, 147 P. 845.)

"It is not essential that the time for the performance of a contract of marriage be stated, for in the absence of such a statement the law will imply that it shall be performed within a reasonable time, depending, of course, on the circumstances of each particular case, and the age and pecuniary circumstances of the parties." (4 R. C. L. 147.)

It was not necessary for plaintiff to prove a demand or request for performance before bringing her suit. It has been repeatedly held that "any acts of the promisor which show a shunning and evasion of the contract, or a failure to carry out the contract as promised, or any refusal that is absolute and unqualified, or which indicates a determination not to marry, will obviate the necessity for a demand of performance." (4. R. C. L. 153.)

Plaintiff testified that she wrote defendant several letters, including one which she registered. These were written obviously...