Bundy v. Dickinson

• Decision Date: 05 August 1919
• Docket Number: 15195.
• Citation: 108 Wash. 52,182 P. 947
• Parties: BUNDY v. DICKINSON.
• Court: Washington Supreme Court

182 P. 947

108 Wash. 52

BUNDY v. DICKINSON.

No. 15195.

Supreme Court of Washington

August 5, 1919

Department 1.

Appeal from Superior Court, Columbia County; Chester F. Miller Judge.

Action by Dora C. Bundy against B. L. Dickinson. Judgment for plaintiff, and defendant appeals. Affirmed.

J. L. Wallace, of Dayton, and J. W. Brooks, of Walla Walla, for appellant.

Geo. H Rummens, of Seattle, and Leon B. Kenworthy, of Dayton, for respondent.

HOLCOMB C.J.

This is an action for damages for an alleged breach of promise of marriage. Defendant's demurrer being overruled, he answered, denying all material allegations, whereupon the cause was tried to the court and a jury, resulting in verdict of $30,000 in favor of plaintiff. Defendant unsuccessfully moved for a new trial, and from judgment entered on the verdict he appeals.

It appears from the evidence that respondent who obtained a divorce from Fred Bundy on September 30, 1916 was employed as a cook on the farm of appellant's son during the summer of 1915. The relations between appellant and respondent at once became very intimate, appellant frequently calling on respondent and automobiling with her. This intimacy was marred by respondent commencing an action in July, 1917, against appellant for breach of promise of marriage. An amicable settlement was effected between the parties, respondent on September 6, 1917, delivering to appellant a release directing dismissal of her case. At the same time appellant voluntarily gave respondent in his own handwriting and over his own signature a testimonial as to her good character and his own high respect and regard for her. No order of dismissal was entered, appellant, having it in his keeping and control, never having filed the release; but neither did he answer or file any pleading. Thereupon, to all outward appearances, the 'entente cordiale' was restored. Another 'era of good feeling' was ushered in, and the parties again enjoyed each other's society. Appellant asserts that the holy influence of mutual affection was never present during the alleged courtship. Respondent began to complain of neglect, but her complaints of inattention and failure to visit her were met with excuses of other engagements which precluded appellant's presence. The relations culminated in commencement December 29, 1917, of the present action, based upon a promise of marriage made on or about and frequently renewed after September 6, 1917, and resulted as heretofore stated.

Appellant makes numerous assignments of error. His demurrer was properly overruled. The court had jurisdiction of the subject-matter and parties, there being no irregularity in the filing of the complaint, and the appearance of appellant being general. Respondent, by reason of the fact as alleged by her, that she was unmarried at all times mentioned in her complaint, had legal capacity to sue. As to the other subdivision of the demurrer that another action was pending for the same cause, it is sufficient to say that there is nothing in the record to indicate such fact. The parties treated the prior action as dismissed, appellant obtaining a release directing dismissal of the action commenced in July, 1917, but he withheld it from the files, and the present action was instituted December 29, 1917, based upon a promise made in September, 1917. If he relied on this release, same should have been pleaded as an affirmative defense. 4 R. C. L. 165.

Appellant next complains that the trial judge erred in admitting certain evidence and rejecting other evidence; in giving improper instructions to the jury, and in refusing to give requested instructions.

Respondent was permitted to testify as to promises of marriage claimed to have been made while she was still a married woman, while her action is founded on an alleged promise subsequent to the time she obtained a divorce.

'The fact that appellant was under a legal disability to make a valid promise of marriage before her divorce did not disqualify her from making an effective contract after the disability was removed. * * * With mere ethical views as to the former agreement we have nothing to do. We are to determine the controversy here strictly upon the legal rights of the parties as they are made to appear since the time of that first agreement.' Leaman v. Thompson, 43 Wash. 579, 86 P. 926.

Appellant will not now be heard to complain. He chiefly endeavored to justify his conduct by showing immorality of respondent dating from the time she was employed by his son, and the error, if any, was cured by the court instructing the jury that, in order for respondent to recover, she must show that the promise relied upon in this suit was made subsequent to the commencement of the prior action, and on or about or subsequent to September 6, 1917. The verdict of the jury is conclusive as to the contention of the respondent that on or about September 6, 1917, she and appellant made a mutual promise of marriage, and that appellant breached same. Both parties were in the presence of the jury, and it was their privilege to observe the demeanor of the parties and give such credit to their...