Lanham v. Wright

• Decision Date: 23 May 1932
• Docket Number: 29883
• Citation: 164 Miss. 1,142 So. 5
• Court: Mississippi Supreme Court
• Parties: LANHAM v. WRIGHT

142 So. 5

164 Miss. 1

LANHAM v. WRIGHT

No. 29883

Supreme Court of Mississippi

May 23, 1932

(Division B.)

1 EVIDENOE.

In suit for breach of marriage promise, evidence of plaintiff's admissions that there had never been an engagement held competent.

2. APPEAL AND ERROR. Breach of marriage promise.

In suit for breach of marriage promise, admitting plaintiff's letters written after alleged breach to prove she admitted promise was never made held prejudicial error.

3. BREACH OF MARRIAGE PROMISE.

For statements made after breach of marriage promise to be admissible, they should have a direct and potential value upon parties' relation at time of or prior to breach.

4 EVIDENCE.

Admission should possess same degree of certainty as would be required in evidence it represents, mere conjecture regarding what might have happened not being admissible.

5. APPEAL AND ERROR. Breach of marriage promise.

In suit for breach of marriage promise, admitting evidence that plaintiff threatened defendant after breach and prior to suit held prejudicial error.

6 WITNESSES.

In suit for breach of marriage promise, evidence impeaching plaintiff's denial that she threatened defendant after breach held inadmissible.

7 WITNESSES.

Witness may not be impeached by things having no bearing on issue.

8. BREACH OF MARRIAGE PROMISE.

In suit for breach of marriage promise, instruction that mere fact that defendant was wealthy did not entitled plaintiff to recover held proper.

9. BREACH OF MARRIAGE PROMISE.

For recovery in suit for breach of marriage promise, there must have been mutual agreement which could be established; mere affection between parties being insufficient.

10 TRIAL.

In instruction, facts of case should be simply stated rather than referring jury to declaration to decipher facts from it.

Division B

APPEAL from circuit court of Leflore county.

HON. S. F. DAVIS, Judge.

Suit by Miss Lilly Lanham against Frank A. Wright for breach of promise of marriage. From the judgment for defendant, plaintiff appeals. Reversed and remanded.

Reversed and remanded.

J. A. Tyson, and O. L. Kimbrough, of Greenwood, for appellant.

An admission should possess the same degree of certainty as would be required in the evidence which it represents and hence mere conjectures or suggestions as to what might have happened if circumstances had not occurred are not competent. Neither should an alleged admission be considered where the subject matter to which it refers is left uncertain.

22 C. J., par. 332, page 300.

Admissions or declarations to be competent must have been expressed in definite, certain and unequivocal language.

1 R. C. L., par. 16, page 481.

Admissions or declarations of defendant may be shown as tending to prove a promise on his part to marry plaintiff although they were made after the alleged breach, or even after the action was commenced unless they are so equivocal that they might mean one thing as well as another.

9 C. J., par. 67, pages 351-352; Rudd v. Dewey, 96 N.W. 973.

No evidence can be given of any fact having a tendency to aggravate the damages which has occurred after the commencement of the suit. If no evidence of any fact occurring after the suit commenced can be given to aggravate damages it seems very reasonable and entirely reciprocal that no such evidence ought to be received to mitigate the damages. Evidence showing a change of feeling is no defense.

Miller v. Hayes, 11 Am. Rep. 154.

Evidence tending to show the feeling of the plaintiff towards the defendant after the breach of the contract, tho relating only to that time, is never admissible.

Robertson v. Craver, 55 N.W. 493; Edwards v. Edwards, 61 N.W. 413-414.

The admission of the letter making derogatory reference to other people were utterly and totally incompetent. They had no reference in the remotest way to the relation of the parties prior to the date of the alleged breach of the contract of marriage. These references to other persons and to other things were matters not even collateral to the subject-matter, but were matters totally foreign thereto and wholly disconnected therefrom.

A statement that one will not appeal is not an admission of liability.

106 Ill. 643.

A statement that a person will claim no damages is not necessarily evidence that he has suffered no damages. It is not an admission that he had no claim for damages at the time of making the statement. It may be rather an assertion of a wrong sustained coupled with a statement that he will not seek redress for the wrong.

Driscoll v. Dauton, 36 N.E. 495-497.

The infallible test as to whether a matter is collateral within the meaning of this rule is this: Would the cross examining party be allowed to prove it as a part or in support of this case? If not, then it is incompetent and irrelevant, for whatever is improper to be proved directly cannot rightfully be proved indirectly.

Williams v. State, 73 Miss. 820.

It is true that, on cross-examination, great latitude is allowed and that a witness may be asked by the cross examining party as to collateral matters, as to which he could not be examined in chief, but the cross examining party in such case is bound by the answers, and cannot contradict them.

Williams v. State, 73 Miss. 820.

It is generally admissible, and often advantageous, to cross examine upon collateral or even immaterial matters, and the refusal of the court to sustain the objection as to this was correct.

Contestant's objection was not directed at the right point. While it was entirely proper to cross examine on the immaterial matter, it was not allowable to impeach the witness as to that matter.

Tucker v. Donald, 60 Miss. 460.

The granting of the following instruction was erroneous:

The court instructs you that the mere fact that defendant is a wealthy man does not entitle plaintiff to recover, but, as set forth in other instructions in this case, it is necessary for plaintiff to prove by a preponderance of the evidence all the material allegations of her declaration, and unless the plaintiff has met this burden, it is your duty to find for the defendant.

It is a dangerous practice to call special attention to an isolated fact and thus, by making it prominent, lead the jury to the opinion that it is of greater significance and weight than other unmentioned facts in the case which may be of no less importance, for the jury will feel bound to regard the fact, thus isolated for their consideration, as the controlling if not the only important fact in the cause which should govern them in making up their verdict. It is a general rule that an instruction should not single out particular facts and thereby give undue prominence to them, as such practice tends to mislead the jury.

14 R. C. L., par. 48, p. 780; New Orleans R. Co. v. Statham, 42 Miss. 607, 97 Am. Dec. 478; Daniel v. Daniel, 4 So. 95.

The jury was entitled to have the law of the case, as given by the court, written out in full in the instructions. To require the jury to resort to the pleadings in the case, to patch up and piece out the instructions, is calculated to confuse and mislead them.

Sou. Ry. Co. v. Ganong, 99 Miss. 540, 55 So. 355.

An instruction which was argumentative, a charge on the weight of the evidence, and also singled out and gave undue prominence to certain portions of the evidence, to the exclusion of the remainder is erroneous.

Potera v. City of Brookhaven, 95 Miss. 774, 49 So. 617; Odeneal v. Henry, 70 Miss. 172; Jacksonville Electric Co. v. Adams, 150 Fla. 429; 7 Ann. Cas. 241, 30 So. 183.

The general rule is that all instructions must be confined to the issues, made by the pleadings and the evidence in support thereof, and no instruction should be given which tenders an issue that is not supported by the pleadings, or which deviates therefrom in any material respect.

14 R. C. L., pars. 50, 784.

If an instruction is not thus based on the evidence it is erroneous in that it introduces before the the jury facts not presented thereby, and is well calculated to mislead and induce them to suppose that such a state of facts in the opinion of the court was possible under the evidence, and might be considered by them.

14 R. C. L., par. 51, page 786; Carney v. McGilvary, 119 So. 157; Solomon v. City Compress Co., 69 Miss. 319; Hooks v. Mills, 57 So. 545; Gulf & S. I. R. R. v. Meyers, 75 So. 244.

The court erred in admitting the testimony of threats alleged to have been made by plaintiff against the person of defendant after the breach of the alleged contract of marriage.

Schmidt v. Durnham, 46 Minn. 227, 49 N.W. 126.

A betrothment may legally be inferred from the proof of circumstances and conduct which ordinarily accompany or succeed such a relation between the sexes, pointing to a future inter-marriage. Evidence of a continued course of accepted and devoted attentions by the male to the female, accompanied with an apparent dedication of the society of each to the other, and the manifestation of reciprocal confidence, and with mutual conduct consistent with proper delicacy and just marital expectations and requirements, is proper for the consideration of a jury in settling the question of the existence of a promise of marriage, whether made in express terms, or by a reciprocal unequivocal understanding between the parties that they were plighted to each other, and were bound to a future marriage.

Goil v. Wallace, 24 N.J.L. 291.

Osborn & Witty, and Gadner, Odom & Gardner, all of Greenwood, for appellee.

Admissions or declarations of defendant may be shown as tending to prove a promise on his part to marry plaintiff although they were made after the alleged breach, or even after the action was...