Fisher v. Oliver

• Decision Date: 01 March 1913
• Citation: 172 Mo. App. 18,154 S.W. 453
• Parties: FISHER v. OLIVER.
• Court: Missouri Court of Appeals

154 S.W. 453

172 Mo. App. 18

FISHER v. OLIVER.

St. Louis Court of Appeals. Missouri.

March 1, 1913.

Rehearing Denied March 15, 1913.

1. APPEAL AND ERROR (§ 1005) — QUESTIONS OF FACT — WEIGHT OF EVIDENCE.

A verdict will not be disturbed on appeal where there is substantial evidence to support it, and it has been confirmed by the trial court, unless the appellate court is satisfied from its amount or by occurrences at the trial that it is so grossly excessive as to indicate passion, prejudice, or corruption on the part of the jury.

2. BREACH OF MARRIAGE PROMISE (§ 23) — SUFFICIENCY OF EVIDENCE.

Evidence in an action for breach of promise held sufficient to sustain a verdict for plaintiff.

3. APPEAL AND ERROR (§ 302) — MOTION FOR NEW TRIAL — ASSIGNMENT OF ERROR.

A motion for a new trial averred that the damages were exorbitant and grossly excessive, and on appeal the assignment of error alleged that the damages were not only against the law and the evidence but were the result of sympathy, passion, and prejudice. Held that, while the assignment did not follow the language of the motion for new trial, in so far as it attacked the verdict as the result of passion and prejudice it substantially put in issue the amount of the verdict.

4. BREACH OF MARRIAGE PROMISE (§ 27) — AMOUNT OF DAMAGES — DEFENDANT'S FINANCIAL CONDITION.

In an action for breach of marriage promise, plaintiff is not limited to compensation for actual damages sustained, an action of this kind being an exception to the general rules governing contracts, and in estimating the damages the pecuniary position of defendant may be considered.

5. BREACH OF MARRIAGE PROMISE (§ 26) — INSTRUCTIONS AS TO DAMAGES.

In an action for breach of promise, the jury were properly instructed that, if they found for plaintiff, they could consider, in determining the damages, her mortification, injured feelings and affections, wounded pride, length of engagement, depth of her devotion, lack of independent means, defendant's wealth and consequent loss of the marriage to plaintiff, and her altered social position caused by defendant's conduct.

6. BREACH OF MARRIAGE PROMISE (§ 31) — DAMAGES — FINANCIAL CONDITION OF DEFENDANT.

In an action for breach of marriage promise, where it is shown that defendant was worth over $70,000, while plaintiff was practically without any means, a verdict for $4,000, the sum demanded in the petition being $20,000, was not excessive and does not indicate passion, prejudice, or corruption on the part of the jury.

Appeal from Louisiana Court of Common Pleas; B. H. Dyer, Judge.

Action by Hattie Fisher against G. J. Oliver. From a judgment for plaintiff, defendant appeals. Affirmed.

D. A. Ball, J. E. Pew, and Robt. A. May, all of Louisiana, Mo., for appellant. Pearson & Pearson, of Louisiana, Mo., for respondent.

REYNOLDS, P. J.

This is an action by plaintiff against defendant for the breach of a promise of marriage. The trial resulted in a verdict in favor of plaintiff in the sum of $4,000, judgment following. Defendant, after filing his motion for new trial and in arrest and saving exception to those being overruled, has duly perfected his appeal to this court.

The court gave several instructions at the instance of plaintiff, none of which are now objected to by appellant. It refused two instructions asked by defendant, one to the effect that under the pleadings and evidence in the cause plaintiff was not entitled to recover; the other, that defendant's wealth and ability to pay was not to be taken into consideration when arriving at a verdict, "and that in any event if they should find that plaintiff is entitled to recover, she is only entitled to recover compensation for the actual damages, if any, she has shown by the evidence in this case that she has actually sustained by reason of defendant's failure, if any, to comply with his agreement, if any, to marry plaintiff."

Five instructions were given at the request of defendant.

There are but two assignments of error made before us by learned counsel for appellant, first, that the court committed error in refusing defendant's instruction in the nature of a demurrer to plaintiff's evidence, offered at the close of all the testimony. Second, that the court committed error in refusing to set aside the verdict because it was against the law and evidence and against the law under the evidence and was the result of "sympathy, passion and prejudice."

The evidence in the case, even as presented in appellant's abstract and in respondent's supplemental abstract, which latter is not challenged, shows beyond question that there was evidence in the case entitling plaintiff to go to the jury. In point of fact, when the argument of counsel for appellant is considered, the gravamen of their complaint is, not that there was no substantial evidence whatever in the case, but that the weight of the evidence is insufficient to sustain the verdict. As has been decided in case after case by our Supreme Court and by all the Courts of Appeals, the appellate courts do not weigh the evidence in actions at law, as is this. The weight to be given to the evidence, the credibility of the witnesses, are all matters for the consideration, primarily of the jury, then for that of the trial court. We cannot disturb a verdict when supported, as is the case at bar, by substantial evidence. That rule, as applicable to this class of actions, was specifically recognized by our Supreme Court in Wilbur v. Johnson, 58 Mo. 600, and Korte v. Hoffman, 97 Mo. 284, loc. cit. 286, 10 S. W. 390.

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