Davie v. Padgett

• Decision Date: 12 April 1915
• Docket Number: (No. 308.)
• Citation: Davie v. Padgett, 176 S.W. 333, 117 Ark. 544 (Ark. 1915)
• Parties: DAVIE v. PADGETT.
• Court: Arkansas Supreme Court

176 S.W. 333

DAVIE v.PADGETT.

(No. 308.)

Supreme Court of Arkansas.

April 12, 1915.

Appeal from Circuit Court, White County; J. M. Jackson, Judge.

Action by Della Padgett against George Davie.From a judgment for plaintiff, defendant appeals.Affirmed.

S. Brundidge, of Searcy, and J. W. & J. W. House, Jr., of Little Rock, for appellant.Rachels & Miller, of Searcy, for appellee.

McCULLOCH, C. J.

This is an action to recover damages for breach of an alleged contract for intermarriage between the parties.The complaint sets forth the allegations as to the contract of marriage and breach thereof, and also alleges seduction as a matter in aggravation of the alleged breach of contract.There was a verdict in favor of the plaintiff, and defendant has appealed.

It is alleged in the complaint, and established by proof, that the plaintiff was about 16 years of age at the time defendant promised to marry her and seduced her, and was 17 years old on the day of the trial in the circuit court.She instituted this action in her own name, without a guardian or next friend.No objection was made below in any form as to plaintiff's incapacity to sue in her own name, and that question is raised here on appeal for the first time.It is insisted that under our statute, which provides that the action of an infant "must be brought by a guardian or next friend"(Kirby's Digest, § 6021), the incapacity of an infant to sue in his own name is jurisdictional, and that the question of jurisdiction may be raised at any stage of the proceedings, even on appeal to this court.The contention is, we think, unsound.The Code of Civil Practice provides, as one of the grounds for demurrer, that the plaintiff has not legal capacity to sue, and that, when such matter does not appear upon the face of the complaint, the objection may be made by answer.Kirby's Digest, §§ 6093-6096.The last section just cited provides that:

"If no such objection is taken, either by demurrer or answer, the defendant shall be deemed to have waived the same."

It thus appears that the statute itself provides that the incapacity of the plaintiff to sue may be waived by the defendant, and is waived by failing to take advantage of the defense at the time and in the manner pointed out by the statute.The judgment is not void because of the plaintiff's incapacity to sue, but that defect only constitutes error, which calls for a reversal of the judgment if taken advantage of in apt time.It has always been the rule of this court that judgments against infants are not void because of the omission to appoint a guardian, but are merely voidable, and can only be avoided on appeal or writ of error or other direct proceedings authorized by statute.Trapnall v. State Bank, 18 Ark. 53.The authorities generally lay down the rule that the defendant waives the objection that the plaintiff is an infant, and suing without guardian or next friend, by pleading to the merits and by failing to raise the objection by demurrer or answer.22 Cyc. 645;1 R. C. L. 53.

It is next insisted that the alleged contract of marriage lacked mutuality because of the incapacity of the plaintiff to enter into a contract, and that the alleged breach of it cannot be made the basis of a right of action.The contract of an infant is not absolutely void but is only voidable at the instance of the infant himself.This court in Bozeman v. Browning, 31 Ark. 364, said:

"As a general rule, no one but the infant himself, or his legal representatives, executors, and administrators, can avoid the voidable acts, deeds, and contracts of an infant, for, while living, he ought to be the exclusive judge of the propriety of the exercise of a personal privilege intended for his benefit."

The numerous authorities cited by counsel for plaintiff on their brief show that the rule is thoroughly established elsewhere, and that only the infant can take advantage of that incapacity to contract.

Error is assigned in the refusal of the court to give the following instruction requested by defendant:

"The jury are instructed that if you find from the evidence that the defendant promised to marry the plaintiff solely on consideration that she should permit him to have sexual intercourse with her (solely on the consideration that she would permit him to have intercourse with her), and as a result of such intercourse she became pregnant, is illegal and cannot be enforced in law; and in this case if you find from the evidence that the defendant did promise to marry the plaintiff upon the consideration that she allow him to have sexual intercourse with her, and that there was no other consideration for such promise, then your verdict will be for the defendant."

The instruction just quoted announced the correct principle of law, and should have been given to the jury, if there was evidence which justified it, for "an immoral consideration will not support a promise of marriage, and consequently, if a promise to marry is on consideration that the promisee shall before marriage have sexual connection with the promisor, it is void."4 R. C. L. 145.See, also, Connolly v. Bollinger, 67 W. Va. 30, 67 S. E. 71, 20 Ann. Cas. 1352, Burke v. Shaver, 92 Va. 345, 23 S. E. 749, and other authorities cited on the brief of counsel for defendant.

The facts of this case did not, however, call for the submission to...