Kirby v. Lower

• Decision Date: 03 January 1910
• Citation: 139 Mo. App. 677,124 S.W. 34
• Parties: KIRBY v. LOWER.
• Court: Missouri Court of Appeals

124 S.W. 34

139 Mo. App. 677

KIRBY v. LOWER.

Springfield Court of Appeals. Missouri.

January 3, 1910.

1. APPEAL AND ERROR (§ 1056) — HARMLESS ERROR — EXCLUSION OF EVIDENCE.

While, in an action for breach of promise of marriage, aggravated by seduction, evidence that, two months after the alleged promise, plaintiff stated that she was engaged to be married to another person, was admissible for consideration in mitigation of damages, its rejection was harmless, only $800 damages having been allowed, and defendant, while denying the promise of marriage, admitting that when plaintiff entered his employ he promised her parents to look after her conduct, and that he debauched her.

2. TRIAL (§ 280) — INSTRUCTIONS — SUFFICIENCY OF OBJECTIONS.

A general objection to an instruction is not sufficient to call the court's attention to the fact that a word used therein should be defined.

3. TRIAL (§ 256) — INSTRUCTIONS — NECESSITY OF REQUESTS.

A party desiring a word used in an instruction to be defined should prepare one properly defining it, and ask that it be given.

Appeal from Circuit Court, Christian County; John T. Moore, Judge.

Action by Girty Kirby against Albert W. Lower. Judgment for plaintiff. Defendant appeals. Affirmed.

G. Purd Hays and G. A. Watson, for appellant. G. W. Thornberry and Fred W. Barrett, for respondent.

COX, J.

Action for $10,000 damages for breach of promise with seduction alleged as aggravation. Trial by jury, verdict for plaintiff for $800, and defendant has appealed.

Error is assigned in the exclusion of testimony offered by defendant and in instructions given for plaintiff. Plaintiff testified to the promise of marriage having been made in April, 1905, and on cross-examination was asked if she had not said to Mrs. Whitsett about harvest time, 1905, that she was going to be married to one Shelton. The witness answered, "No," but on objection of plaintiff's attorney the answer was stricken out. Defendant later offered to prove by Mrs. Whitsett that plaintiff had said to her, in June, 1905, that she was engaged to be married to Jesse Shelton, a single and unmarried man. This offer was rejected. If this conversation occurred at all, it was after the alleged promise of defendant, yet we think it should have been admitted. While it would not constitute a complete defense, yet, if true, it would have been proper for the consideration of the jury in mitigation of damages, and if this were a close case, or the damages assessed had been to any extent excessive, we should...