Liese v. Meyer

• Decision Date: 01 April 1898
• Citation: 143 Mo. 547,45 S.W. 282
• Parties: LIESE v. MEYER.
• Court: Missouri Supreme Court

45 S.W. 282

143 Mo. 547

LIESE v. MEYER.

Supreme Court of Missouri, Division No. 1.

April 1, 1898.

BREACH OF PROMISE — PLEADING — AMENDMENT — WAIVER OF RIGHT TO REVIEW — EVIDENCE — WEIGHT — FINDINGS — BURDEN OF PROOF — INSTRUCTIONS — DAMAGES — MEASURE — SEDUCTION.

1. In an action for breach of contract of marriage, aggravated by seduction, changing the prayer for relief in the petition from one for damages caused by the seduction to one for damages for the breach of the contract to marry is an amendment, and not a change of the cause of action.

2. Filing an answer and going to trial on the issues waives the right to have the ruling of the trial court reviewed on a motion to dismiss the amended petition because it changed the form of action.

3. In an action for breach of contract of marriage, aggravated by seduction, plaintiff testified to the promise and seduction, and offered to prove by other testimony that defendant admitted having intercourse with her. Defendant admitted the promise to marry plaintiff, but denied intercourse, and pleaded as a release therefrom her intercourse with other men. One witness testified to having seen a couple in a compromising position, and was impressed that the woman was plaintiff, although not positive. Plaintiff testified that the seduction took place in the first part of August, and on cross-examination said it was on the first Sunday in August. which was August 2d. A letter from defendant to plaintiff from another town, some distance away, was dated August 2d, and a letter from plaintiff to defendant showed that plaintiff was at a lecture on that date, unaccompanied by defendant. Held sufficient to sustain a verdict in favor of plaintiff.

4. Where there is a discrepancy in plaintiff's testimony, the weight to be given it is for the jury to determine.

5. Where there is ample evidence to support the verdict and judgment, the findings will not be disturbed.

6. In an action for breach of contract of marriage, aggravated by seduction, the burden of proving a release from the engagement is upon defendant.

7. The instructions must be taken as a whole, and, when so taken, if they present the issues fairly, and are not calculated to mislead the jury, they are unobjectionable.

8. An allegation in defendant's answer, in an action for breach of contract of marriage, and an attempt to prove, that plaintiff's character for chastity and purity was bad, may be considered by the jury in aggravation of plaintiff's damages.

9. Instructions which single out and give prominence to a single fact are properly refused.

10. Instructions asked, which are substantially covered by other instructions given, are properly refused.

11. The measure of damages in an action for breach of marriage contract is the injury to the plaintiff's feelings, affection, and wounded pride, as well as the loss of marriage.

12. The seduction of plaintiff may be shown to aggravate the damages in an action for breach of marriage contract.

Appeal from circuit court, Lafayette county; Richard Field, Judge.

Action by Lena Liese against John Meyer. From a judgment for plaintiff, defendant appeals. Affirmed.

The plaintiff sued the defendant on the 11th of March, 1893, for damages for breach of contract of marriage, aggravated by seduction. The original petition fixed the year 1889 or 1890 as the date of the mutual agreement to marry, and charged that while the agreement was in force, "to wit, on or about the 1st day of August, 1891," the defendant seduced her, and on several occasions thereafter down to and including the 15th day of August, 1891, while the agreement was still in force, he continued to debauch her, in consequence of which she became pregnant, and was, on the 15th of May, 1892, delivered of a female child, which is still living; that she was always, and still is, willing to marry defendant, but he refused so to do. The prayer of the petition was: "Wherefore, by reason of the said seduction of plaintiff by defendant under promise of marriage, as aforesaid, the carnal knowledge of and pregnancy of plaintiff and the child-bearing consequent thereon, she was brought into public scandal, infamy, and disgrace among her neighbors, greatly wounded in her womanly pride and sensibility, had suffered great bodily pain and mental anguish, was left with an infant daughter on her hands for support, and her prospects for life and eligible marriage blasted, to her great injury and damage in the sum of ten thousand dollars, for which, with costs, she asks judgment." The defendant answered, admitting the contract to marry the plaintiff, and the birth of the child, but denied the other allegations of the petition. He then set up a specific, affirmative defense, claiming that he had often urged plaintiff to fulfill her promise, and marry him, but that, from time to time, she put off the marriage up to the time of giving birth to a child, about May 13, 1892; and averring that at some time during the continuance of the marriage contract — the exact date being unknown to him — the plaintiff, without his knowledge, had sexual intercourse and connection with some man or men unknown to him, and, as a result, became pregnant, "which fact she kept concealed from defendant up to and even after the birth of the child; that at all times the defendant treated the plaintiff with respect, and, ignorant of her conduct and condition, urged her to marry him, but that he never at any time had sexual intercourse with the plaintiff, and hence is not the father of the said child; that by reason of the premises he was released and discharged from his promises and marriage agreement with the plaintiff." The reply denied generally the new matter set up in the answer. When the case came on for trial at the December term, 1893, and after the jury was impaneled, the defendant objected to the introduction of any evidence, claiming that the petition did not state facts sufficient to constitute a cause of action; that the suit was for seduction, and not for breach of a promise of marriage. The court sustained the objection. Plaintiff took leave to amend, and the cause was continued. In due time the plaintiff filed an amended petition, which was substantially the same as the original petition, except that the prayer was changed so as to read: "Wherefore, by reasons of the premises and the breach of the said contract of marriage by defendant, the plaintiff has sustained damage in the sum of ten thousand dollars, for which, with the costs of this action, plaintiff prays judgment against the defendant." The defendant filed a motion to dismiss or strike out the amended petition, "for the reason that the same was not properly an amended petition, in that it materially changes the cause of action from one ex delicto to one for a breach of contract." The court overruled the motion, and defendant filed his bill of exceptions. The defendant then filed an answer to the amended petition, which was identically the same as his answer to the original petition, and the plaintiff replied generally. The case was tried before the court and a jury, and a verdict and judgment entered for the plaintiff for $10,000, the full amount claimed in the petition. The defendant appealed.

J. D. Shewalter and Sangree & Lamm, for appellant. Wallace & Chiles and H. F. Wieman, for respondent.

MARSHALL, J. (after stating the facts).

1. The first ground relied on by defendant to reverse the judgment is the refusal of the circuit court to dismiss or strike out the amended petition, and it is argued that the first petition was an action ex delicto for seduction, while the amended petition presented a case for damages ex contractu for breach of a contract of marriage. Under the Code in Missouri (section 2039, Rev. St. 1889) the petition is required to be "a plain and concise statement of the facts constituting a cause of action," and this, too, whether the facts pleaded would entitle the plaintiff to legal or equitable relief. Clark v. Clark, 86 Mo. 114. With the exception of the prayer for relief, the facts stated in the original and in the amended petition are exactly the same. The fact that in the prayer of the original petition the seduction was made prominent as the basis of plaintiff's damage, while in the amended petition the breach of the contract to marry was solely relied on, did not change the form of action. The statute (section 2039, Rev. St. 1889) provides that the petition shall contain "a demand of the relief to which the plaintiff may suppose himself entitled," but this does not define or control the character of the action. The motion to dismiss or strike out the amended petition was no broader than a general demurrer would have been, and it is the settled rule in this state that a demurrer to a petition will not lie because the relief prayed is beyond the power of the court to grant, or that it is not in harmony with the proper relief upon the facts pleaded, but the court will look to the whole petition, and grant such relief as the facts pleaded will authorize. Crosby v. Bank, 107 Mo. loc. cit. 442, 17 S. W. 1004; Muenks v. Bunch, 90 Mo. 500, 3 S. W. 63; Kerr v. Simmons, 82 Mo. 269; Newham v. Kenton, 79 Mo. 382; Saline Co. v. Sappington, 64 Mo. 72; McClurg v. Phillips, 49 Mo. 315; Bliss, Code Pl. 334. Disregarding the prayer of the petition, there is absolutely no material difference between the original and amended petitions. There are two tests by which to determine whether a second petition is an amendment or a substitution of a new cause of action: First, whether the same evidence will support both petitions; and, second, whether the same measure of damages will apply to both. If these questions are answerable in the affirmative, it is an amendment; if in the negative, it is a substitution. Scovill v. Glasner, 79 Mo. 449; Sauter v. Leveridge, 103 Mo. loc. cit. 621, 15 S. W. 981; Holt Co. v. Cannon, 114 Mo. loc. cit. 519, 21 S. W. 851. Applying these...