Carney v. McGilvray

• Decision Date: 15 October 1928
• Docket Number: 27248
• Citation: 152 Miss. 87,119 So. 157
• Court: Mississippi Supreme Court
• Parties: CARNEY v. MCGILVRAY. [*]

119 So. 157

152 Miss. 87

CARNEY v. MCGILVRAY. ^[*]

No. 27248

Supreme Court of Mississippi

October 15, 1928

Division A

Suggestion of Error Overruled Dec. 10, 1928.

APPEAL from circuit court of Forrest county, HON. R. S. HALL, Judge.

Action by Cordelia P. Carney against Duncan McGilvray. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Reversed and remanded.

R. L. Bullard, for appellant.

A broken agreement to marry gives rise to the action. Nothing that occurred after the breach is a defense. Nothing that existed at or before the breach that was not a cause for it is a defense. Undesirable personal traits, if they exist, is no defense. Conduct short of unchastity is not a defense, but sometimes may be proved in mitigation of damages. Therefore the pleadings, the general issue and notice under it as qualified by the response to the demand for a bill of particulars, presents no fact which, if true, will bar the action. The most that this amounts to is that they say she is not "a woman of modesty and has not a proper sense of propriety," but by that they explain that they do not say that she was guilty of any unchaste conduct. See 9 C. J 326.

It is the first object of instructions to define the issues to be decided under the evidence, when the evidence is in conflict. The trial court was of opinion that there is no conflict in the evidence as to the promise and breach, but was of opinion that it ought to be submitted to the jury to say whether in their opinion she is a modest woman with a proper sense of propriety, and that without informing them as to what is a modest woman with a proper sense of propriety. It is submitted that it would not be easy to imagine a case in which the jury were left so much to their own opinions and devices and with so little accurate direction to guide them as in this case. As to the issues before them the plaintiff was refused all instructions except those stating that a promise to marry and a breach of it gives rise to the action and that a proposal and acceptance may be expressed by acts as well as words. There is therefore nothing in the instructions as to explain, supplement or cure the errors in the defendant's instruction. There was no question of fact that should have been submitted to the jury, except the amount of damages and we submit that a judgment should be entered here and the case remanded to assess the damages only. But if we are not entitled to that, certainly it ought to be remanded for trial again without the objectionable evidence, and under proper instructions.

John R. Tally and Stevens & Heidelberg, for appellee.

In the old case of Espy v. Jones, 37 Ala. 379, it is held that if any man has been paying his addresses to one he supposed to be a modest person and afterwards he learns that she is immodest, he is justified in breaking any promise of marriage which he might have made to her, and as early as 1857 it is held in Berry v. Bakeman, 44 Me. 164, that because the plaintiff is a loose and immodest woman and that the defendant broke his promise on that account, is a bar to the action, unless it should also appear that the defendant was aware of this when he made the promise, in which case, it is no defense.

The proof in this case is uncontradicted that the appellee did not know of this immodesty prior to the time the appellant claims he made the promise to marry her. However, the instruction complained of by appellant really placed too great a burden on the appellee. We submit that this instruction would have been proper just as it was written, before the court modified it, or required its modification, by adding the last clause reading as follows: "Provided you further believe from the evidence that such conduct was fraudulently concealed from the defendant."

It was said in Sharon v. Sharon, 75 Cal. 1, 16 P. 345, that while a marriage contract is simply that the parties forthwith enter into the relation of marriage, "the rights and obligations of that status are fixed by society in accordance with the principles of natural law." See Miller v. Miller, 175 Cal. 797, Ann. Cas. 1918E 184.

We respectfully submit that, taking the instructions as a whole, they were most favorable toward the appellant, and fairly submitted the case to the jury. The jury found in favor of the appellee and the evidence amply justified the verdict, and the decision of the court should, therefore, be affirmed.

OPINION

MCGOWEN, J.

Mrs. Cordelia Carney sued Duncan McGilvray in the circuit court of Forrest county on a breach of contract--his failure to carry out a promise of marriage.

The defendant pleaded the general issue, and gave notice thereunder that on the trial he would undertake to prove that she did not in good faith expect to marry him and become his wife, and perform the duties of a wife to her husband; that she (the plaintiff) was under the impression that he (the defendant) was a man of wealth; that she knew he was old, and believed he had only a short time to live, and sought to inveigle him into a marriage with her, in order to secure the property which she believed him to own; that, in furtherance of her designs, she tried to lead the defendant to believe that she was a good woman, of good moral character, and of good reputation for morality and chastity; a woman of modesty and proper sense of propriety; that he soon learned that the plaintiff had been making disrespectful remarks about him to her neighbors and acquaintances; that it was not true that she was a woman of modesty and a proper sense of propriety, nor was it true that she had a good reputation for modesty and chastity; that after he learned these things he ceased his relations with her.

At the close of plaintiff's testimony, plaintiff demanded of the defendant a bill of particulars, on the idea that notice under the general issue charged the plaintiff with unchastity.

Upon an order of the court the defendant responded, and, in a written bill of particulars, specifically denied that there was an allegation under the general issue that the plaintiff was guilty of unchastity, but renewed his statement that she was not a woman of modesty and did not have a proper sense of propriety. To substantiate this latter allegation he made the following specific charges: First, that during the fall of the year 1926 she and a man by the name of Earl Brown lived alone in the same house for some time; second, that during the year 1926, after the death of her husband, men were frequently seen to drive up near her house, and that she and such men would go down under the hill and into the woods, where they would stay for some time; third, that after suit was filed plaintiff wrote a letter to Joe J. Blackwell, seeking a clandestine engagement with him; and, fourth, that in the month of November, 1926, plaintiff and Earl Brown made a two-day trip together.

The case was submitted to the jury, and a verdict was rendered in favor of defendant. Plaintiff in the court below, Mrs. Carney, prosecutes an appeal here.

The appellant assigns as error the refusal of the court below to grant her a peremptory instruction to the effect that there was a promise of marriage, and a breach thereof, and submitting only to the jury the question of the amount of damages sustained by her.

According to the testimony of the plaintiff and her witnesses, there was a positive and unequivocal contract of marriage, to be fulfilled on her birthday, May 10, 1927.

It is not our purpose to review the evidence in this case and set it out at length, but we shall only restate that which is necessary to an understanding of this opinion.

The parties to this suit were people who lived in the country. Mrs. Carney had a small farm and a country store in connection therewith. Sometimes she lived at her home near the store, and sometimes she lived at the home of a neighbor, until Mr. McGilvray bought a home in the city of Gulfport to which she moved and lived for some time, and where she (Mrs. Carney) understood they were to be married, and live ever happily thereafter.

Her testimony as to the courtship and engagement is strongly supported by the love letters written by Mr. McGilvray to her. These letters evince affection, and are signed "Lovingly yours." They were written from Hattiesburg, and in all save the last one he announced his intention of returning to Gulfport, and assured her that he "would soon be down," until finally, about the latter part of June, 1927, he wrote her a letter in which he used this expression:

"Well, Mrs. Carney, i don't know how to answer your letter. I am not well, and badly torn up and bothered in mind. I had much rather suffer my self than to cause any one else trouble, you go on and do what you think best for yourself. I don't know what is best to do except to pray and leave the whole matter with the Lord. Respectfully yours," etc.

Mrs. Carney testified that this letter was in response to a letter written by her, asking when he was coming down to be joined in holy wedlock with her.

Mrs. Carney further testified that, on their first trip to Gulfport to purchase the house into which she later moved, he asked her when would be her next birthday, and that she told him May 10th, to which he replied, "On that date I am going to give you a birthday present, to-wit, myself," and that she accepted, and acceded to this declaration in all good faith.

The defendant's testimony, in substance, is a denial that he ever asked her to marry him, or that he ever agreed to marry her; but he does say that on one occasion, when he went to her store, he asked her if she ever expected to take another companion, and that she replied that she would have to consult her daughter in New York, that her daughter was...