Broyhill v. Norton

• Decision Date: 27 May 1903
• Citation: 74 S.W. 1024,175 Mo. 190
• Parties: BROYHILL v. NORTON.
• Court: Missouri Supreme Court

74 S.W. 1024

175 Mo. 190

BROYHILL v. NORTON.

Supreme Court of Missouri, Division No. 1.

May 27, 1903.

BREACH OF MARRIAGE PROMISE—PETITION—ALLEGATION OF PROPOSAL—REQUEST FOR PERFORMANCE—SUFFICIENCY—DEMURRER — WAIVER—INSTRUCTIONS—DAMAGES.

1. A petition in an action for breach of marriage promise which shows a proposal by defendant and acceptance by the plaintiff, both being free to marry, sufficiently shows a promise to marry, and not merely a proposal.

2. Where, in an action for breach of marriage promise, the petition did not allege that plaintiff had requested performance on the part of the defendant, and there was a demurrer on the ground that the petition did not state facts sufficient to constitute a cause of action, but defendant answered over, there was a waiver of any objection.

3. Where an omission of an allegation in a petition is not called to the attention of plaintiff or the court until the commencement of trial, if the petition can be construed as fairly implying what should have been expressly averred, the objection should be overruled.

4. Where a man who has entered into a contract to marry with a woman discontinues his attentions and informs her that he will not marry her, she is not obliged to again offer herself to him in marriage, in order to maintain an action for breach of promise.

5. Where the petition did not allege a request for performance by plaintiff, and defendant demurred on the ground that the petition did not state a cause of action, but subsequently answered over, and did not draw the attention of plaintiff or the court to the fact that the petition failed to allege a request on her part until the commencement of the trial, the admission of evidence tending to show that plaintiff requested defendant to comply with his contract was not erroneous.

6. The court instructed that if defendant proposed marriage to plaintiff, which she accepted, and no definite time had been fixed therefor, and thereafter defendant refused to marry plaintiff, and declared that he did not intend to, the verdict should be for plaintiff. Held, that the instruction was not obnoxious to the objection that it omitted to require the jury to find that plaintiff requested the defendant to marry her, and that it referred to his refusal.

7. The court instructed that the jury should consider the length of the engagement, depth of plaintiff's devotion, lack of means, mortification, altered social condition, and that if they believed that defendant's attempt to prove unchaste conduct with others was made without reasonable cause to believe that such charge could be proven, and the jury believed that the plaintiff was innocent of such charge, that fact should be taken into consideration in aggravation of plaintiff's damages. Held, that the instruction was not erroneous on the ground that it submitted elements of damage not set out in the petition; there being but one element that would not naturally follow from a breach of marriage promise, and defendant being responsible for the introduction of such element, because of his having gone outside of the issues in an attempt to blacken the character of plaintiff.

8. The instruction was not erroneous because the court directed the jury to consider defendant's attempt to show plaintiff's character unchaste, without directing them that they must first find that defendant was actuated by malice in making such charge; it appearing that the attack was unfair, in that the suit was tried in a county to which defendant had obtained a change of venue, and the answer was a general denial, which gave no warning of the attack.

9. The court instructed that if the proposal was made, and accepted by plaintiff, any illicit relations between them, induced by such promise, would not justify defendant in refusing to consummate such marriage. Held, that there was nothing in the instruction of which defendant could complain.

10. In an action for breach of marriage promise, there was evidence that plaintiff had visited houses of ill fame; but she testified that she was not acquainted with the nature of the places, and went there for a moral purpose. The court refused to charge that, if the jury found that plaintiff visited assignation houses or houses of ill fame, the fact of such visits was prima facie evidence that she visited them for the purpose of sexual intercourse with men, and that the burden was on her to rebut the presumption by satisfactory proof, and that if she failed to rebut such presumption the jury were warranted in concluding that such was an unchaste woman. Held, that the instruction was properly refused, inasmuch as it left out of view the evidence that plaintiff had visited the places referred to without knowledge of their character.

11. An instruction is properly refused in the absence of any evidence on which to base it.

12. Though, in an action for breach of marriage promise, the testimony of defendant was flippant in style, and carried an innuendo that he had been criminally intimate with plaintiff, which fact plaintiff denied, where he was a railway mail clerk, and his only property was one house, which was not paid for, a verdict for $25,000 will be reversed unless plaintiff remits one-half.

Appeal from Circuit Court, Clay County; J. W. Alexander, Judge.

Action by Lena Broyhill against H. B. Norton for breach of marriage promise. From a judgment for plaintiff, defendant appeals. Modified.

Bremermann & Wherry, for appellant. Kagy & Horn, for respondent.

VALLIANT, J.

Breach of promise of marriage. The petition is as follows: "The plaintiff, Lena Broyhill, for her cause of action against the defendant, H. B. Norton, states that on the 5th day of August, 1899, she was, and now is, a single woman and unmarried; that on said date the said defendant proposed to marry plaintiff, and plaintiff accepted said proposition of marriage, no definite time having been fixed for the consummation of their nuptials; that, in pursuance of said contract, plaintiff made preparations to consummate the same at such time as the said defendant and she might determine upon, and said defendant informed plaintiff that as soon as he had completed the construction of a house in Westport, Missouri, they would consummate said contract; and plaintiff states that said house has been completed, yet the defendant, notwithstanding his promise to make plaintiff his wife, has failed, neglected, and refused, and still fails, neglects, and refuses, to carry out said contract, as by the terms thereof he was bound to do; that said defendant has abandoned plaintiff, and informs her that he does not intend to consummate said contract, and does not intend to marry plaintiff, as by the terms of his contract he was bound to do. Plaintiff states that it has become publicly known, and particularly among her relatives and friends, that she and the said defendant were engaged to be married, and the failure of said defendant to consummate said marriage has placed plaintiff in an embarrassing position, has caused her great mental suffering, and, by reason of the premises, plaintiff states that she has been damaged in the sum of twenty-five thousand dollars. Wherefore plaintiff demands judgment against said defendant for said sum of twenty-five thousand dollars, and for her costs of suit." There was a demurrer to the petition on the ground that it did not state facts sufficient to constitute a cause of action, which was overruled, whereupon defendant filed for answer a general denial. When the cause came on for trial, defendant objected to any evidence in support of the petition on the grounds, first, that it did not state facts sufficient to constitute a cause of action; second, there was no allegation of a mutual promise of marriage; third, no allegation that plaintiff was ready, able, and willing to marry; fourth, it is not alleged that plaintiff requested defendant to marry her. The objection was overruled, and defendant excepted.

The testimony on the part of plaintiff tended to show as follows: At the time of the trial, plaintiff was twenty-six years old, and had never been married. She was living with her mother in Kansas City. Defendant came to board with her mother in January, 1899. He began at once to show plaintiff attention. His interest in her apparently increased, and his attentions became more pointed, until in August of that year, when he had taken her out to a park in the city, their conversation turned on mutual friends of theirs who were engaged to be married, and in that connection he said to her that he had concluded, after careful study, that if she was willing they would in the spring go to Mr. Wilcox's, and have her take the name of Mrs. Norton. Mr. Wilcox was the preacher of the church in Kansas City which they sometimes attended together. She replied that she was willing. He said that he would finish paying for a house he was building or repairing in Westport on the 12th or 15th June next, and they would then get married. After that he took her out to Westport several times to see the house, and told her they would live there when they were married. During all the time after their engagement in the park until the latter part of January, 1900, his attentions continued, with demonstrations of affection. Upon one occasion, however, in January, 1900, a young woman visited the defendant at the house of plaintiff's mother at night, and was received in his room. She was taken sick during the night, and defendant requested plaintiff to wait on her, or render her a particular service, which the plaintiff refused to do. The next day defendant told the plaintiff he would not marry her, giving as his reason her refusal to wait on the young woman mentioned. She told him she thought it was his duty to marry her, and requested him to do so, but he refused. Some time after that the plaintiff's mother spoke to defendant, and he told her that he would not marry her. The testimony on the...