Lumsden v. Arbaugh

• Decision Date: 14 February 1921
• Citation: 227 S.W. 868,207 Mo.App. 561
• Parties: HUGH LUMSDEN, Respondent, v. SYLVIA ARBAUGH, Appellant
• Court: Missouri Court of Appeals

227 S.W. 868

207 Mo.App. 561

HUGH LUMSDEN, Respondent, v. SYLVIA ARBAUGH, Appellant

Court of Appeals of Missouri, Springfield

February 14, 1921

Appeal from Scott County Circuit Court.--Hon. Frank Kelly, Judge.

AFFIRMED.

Judgment affirmed.

R. E Bailey for appellant.

(1) An instruction is erroneous which singles out facts in the case and gives improper prominence and significance to them. State v. Shaffer, 253 Mo. 320, 161 S.W. 805; Zander v. Transit Co., 206 Mo. 445, 103 S.W. 1006; Tibbe v. Kamp, 154 Mo. 545, 54 S.W. 879; Liese v. Meyer, 143 Mo. 547, 45 S.W. 282; Landrum v Railroad, 132 Mo.App. 717, 112 S.W. 1000; Musser v. Adler, 86 Mo. 445; Jones v. Jones, 57 Mo. 138; Rose v. Spies, 44 Mo. 20; Fine v. St. Louis Public Schools, 39 Mo. 59, l. c. 67-68. (2) Prejudicial remarks of the court in the presence of the jury, or oral instructions, or remarks equivalent to oral instructions, virtually withdrawing from the jury an instruction previously and properly given, constitute reversible error. Sec. 1987, R. S. 1909; State ex rel. v. Rubber Co., 149 Mo. 181, 50 S.W. 321; State v. De Mosse, 98 Mo. 340, 11 S.W. 731; Thompson v. Ish, 99 Mo. 160, 12 S.W. 510; Bailey v. Ormsby, 3 Mo. 580; Cape Girardeau v. Fisher, 61 Mo.App. 509; Skinner v. Stifil, 55 Mo.App. 9.

Gresham & Blanton for respondent.

(1) A gift made in contemplation of marriage can be recovered by the donor upon breach of promise of marriage by other party without cause. 20 Cyc., p. 1213, section 4 and note 91, p. 1214; 14 Am. and Eng. Encycl. Law, p. 1045; Humble v. Gay, 143 P. 778, 168 Cal. 516; Burke v. Nutter, 79 W.Va. 746, 91 S.E. 812; 12 R. C. L., p. 951, section 26; Robinson v. Cummings (English), 2 Atkyns, 409; Williamson v. Johnson, 62 Vermont, 378, 20 A. 279; 9 L.R.A. 277; 22 Am. St. Rep. 117; Halbert v. Halbert, 21 Mo. 277. (2) A gift obtained by fraudulently holding out to donor that donee might marry him, when as a matter of fact she never intended to marry him, can be recovered. Burke v. Nutter, 79 W.Va. 746, 91 S.E. 812; Robinson v. Cummings, 2 Atkyns, 409. (3) Instruction given on behalf of defendant purporting to cover entire case is erroneous if inconsistent with those correctly given for plaintiff; of if it ignores plaintiff's theory of the lawsuit. Avers v. Shumaker, 57 Mo.App. 454; Flucks v. Railway, 143 Mo.App. 17, 122 S.W. 348; Daso v. Jefferson City Co., 189 S.W. 400 (not officially reported); Stepham v. C. B. & Q. Ry., 199 S.W. 273 (not officially reported); Bennett v. Railway, 180 S.W. 1050 (not officially reported); Fitzgerald v. Hayward, 50 Mo. 516; Longmare v. Busby, 56 Mo. 540. (4) Instruction assuming to cover entire case but which ignores some issues is not cured by being read in connection with other instructions. Pearson v. Lafferty, 197 Mo.App. 123, 193 S.W. 40; Hall v. Coal Co., 260 Mo. 369, 168 S.W. 927; Walker v. White, 192 Mo.App. 13, 178 S.W. 254; Riffe v. Wabash Railway, 200 Mo.App. 397, 207 S.W. 78; Atkins v. Brown, 208 S.W. 502 (not officially reported).

BRADLEY, J. Farrington, J., concurs., Cox, P. J., not sitting.

OPINION

BRADLEY, J.

Plaintiff proceeded in replevin in a justice of the peace court to recover a piano. The cause found its way to the circuit court and was there tried to a jury, and plaintiff prevailed, and defendant appealed.

The defense is that the piano was an unconditional gift, while plaintiff contends that the piano was given in contemplation of marriage, and that defendant broke the engagement, and that he, plaintiff, is entitled in law to the return of the property so given. Plaintiff testified to the engagement and the breaking thereof by defendant, and to the gift of the piano, and stated in effect that it was given to defendant in contemplation of their marriage, and not as an absolute and unconditional gift. In addition plaintiff offered evidence tending to support his evidence that an engagement of marriage existed. Defendant denied the engagement and offered evidence tending to support her. She testified in effect that the piano was a Christmas gift from plaintiff, and was not conditioned directly or indirectly on any contemplated marriage. If the piano was given to defendant by plaintiff in contemplation of marriage, and she broke the engagement for no fault of plaintiff, then he can recover. We find no case in our State directly bearing on this class of gifts. In 14 A. & E. Encycl. of L., 1045, we find this statement of the law on gifts made in contemplation of marriage; "A gift to a person to whom the donor is engaged to be married, made in contemplation of marriage, although absolute in form, is conditional; and upon breach of the marriage engagement by the donee the property may be recovered by the donor. But if the gifts are made simply for the purpose of introducing the donor to the donee's acquaintance, and to gain her favor, the property is not recoverable although marriage does not ensue." In support this text cites Williamson v. Johnson, 62 Vt. 378, 20 A. 279, 9 L.R.A. 277, 22 Am. St. Rep. 117, and some old English Chancery cases. Burke v. Nutter, 79 W.Va. 743, 91 S.E. 812, was to recover for money advanced as a gift or a loan made in contemplation of marriage. The court there quoted with approval the rule as laid down by Thornton on Gifts and Advancements as follows: "If an intended husband make a present, after the treaty of marriage has been negotiated, to his intended wife, and the inducement for the gift is the fact of her promise to marry him, if she break off the marriage, he may recover from her the value of such present." In 12 R. C. L., p. 951, section 25, it is said: "Where a woman receives money from a man for the purpose of carrying out her promise to marry him, and then refused to keep her promise, without cause, she may be compelled to refund such money." [See, also, Humble v. Gay, 168 Cal. 516, 143 P. 778.]

Defendant makes complaint that the trial court erroneously modified her instruction. Plaintiff's instructions mentioned three classes of gifts, a gift in contemplation of marriage, a gift fraudulently induced, and the requirements of an unconditional gift. Defendant's modified instruction, the modification in italics is as follows: "The court instructs the jury that if you find and believe from the evidence that the plaintiff delivered the piano in controversy to defendant and gave it to her as a gift, but not in contemplation of a marriage with her, as defined under other instructions of the Court, then your verdict will be for the defendant, and if you do so find that the piano was a gift from plaintiff to defendant, it is immaterial whether the plaintiff and defendant were engaged to be married at that or any other time." There is no merit in this assignment. This instruction unmodified was practically a direction to find for defendant. Plaintiff did not deny that he gave the piano to defendant, but he contended that he did so in contemplation of marriage. Unmodified the instruction was in direct conflict with instructions given for plaintiff, and wholly ignored plaintiff's case, and the modification was proper. [Daso v. Bridge Co., 189 S.W. (Mo. App.) 400.]

Defendant also assigns as error certain remarks of the court. The modification of defendant's instruction mentioned above did not occur until plaintiff's counsel had made the opening argument, and while defendant's counsel was arguing the cause to the jury. The record pertaining to this assignment discloses the following: "Mr. Bailey: Comes now the defendant and objects and excepts to the modification of instruction No. 1 by the...