Daggett v. Wallace

• Decision Date: 10 December 1889
• Citation: 13 S.W. 49
• Parties: DAGGETT <I>v.</I> WALLACE.
• Court: Texas Supreme Court

13 S.W. 49

DAGGETTv.

WALLACE.

Supreme Court of Texas.

December 10, 1889.

Commissioners' decision. Appeal from district court, Tarrant county; R. E. BECKHAM, Judge.

Action by Nancy A. Wallace against Thomas H. Daggett, for breach of promise of marriage. Defendant appeals.

B. P. Ayres, for appellant. R. L. Carlock and Stedman & Furman, for appellee.

HOBBY, J.

The first assignment, complaining of the court's action in overruling defendant's general demurrer to the petition, we think, is without merit, and the statement under it, that the allegations of plaintiff do not show in what respect she was damaged by the alleged breach of defendant's promise of marriage, we do not think is supported by the record. It is directly averred that by reason of the breach of defendant's promise she has sustained the loss of an advantageous matrimonial connection, he being a man of wealth and social position, and that, in addition thereto, her affections have been disregarded and blighted, her feelings lacerated, and her spirits wounded, resulting in mental distress and humiliation. That the plaintiff may recover upon these allegations is well settled. 3 Suth. Dam. 316, and cases cited.

We do not think an inspection of the petition will support the second assignment, to he effect that there was error in overruling defendant's exception to the second count in the petition, wherein damages were sought for plaintiff's seduction by defendant. The special exception referred to in this assignment assails that part of the petition which seeks to recover exemplary damages, and does not direct the court's attention to plaintiff's allegation with respect to defendant's seduction of her. There is no attempt in the petition to set up a distinct claim for damages on this ground, and the assignment is not, therefore, well taken. In so far as this exception may be considered as attacking the averment of seduction because it is not a proper element of actual damage in cases like the present, we think it is also untenable. The policy of the law, it seems, refuses to recognize the right of the female seduced to recover solely for the seduction, and this upon the principle that she is not entitled to satisfaction from her partner in crime for the supposed injury to which she consents. But, while this may not afford a separate and distinct ground of recovery, it is settled by the great majority of cases that, in an action for the breach of a promise of marriage, such seduction, if alleged and proved, is proper to be considered in estimating the damages. Sherman v. Rawson, 102 Mass. 399; 3 Suth. Dam. 316. The reason for this is that it cannot be fairly ascertained to what extent the plaintiff is damaged by the breach of the contract or promise, without considering the condition in which she is left by the defendant's conduct which is complained of. Kelley v. Riley, 106 Mass. 343.

The third assignment complains of the admission in evidence of the plaintiff's statement, that "about 6 months after Christmas of 1876, she became engaged to the defendant." This was objected to because the witness should have stated facts, and not conclusions as to conversations, but the conversations. If appellant's position be correct, that this was a statement of a conclusion, and not a fact, which we are not prepared to admit, still it does not appear to us to be a material error in the case; and it is...