Parks v. Marshall

• Decision Date: 02 March 1929
• Docket Number: No. 27266.,27266.
• Parties: RUTH E. PARKS, by Next Friend, ROSE PARKS, v. BEN F. MARSHALL, Appellant.
• Court: Missouri Supreme Court

14 S.W.2d 590

RUTH E. PARKS, by Next Friend, ROSE PARKS, v. BEN F. MARSHALL, Appellant.

No. 27266.

Supreme Court of Missouri, Division Two.

March 2, 1929.

Appeal from Wayne Circuit Court. — Hon. E.M. Dearing, Judge.

REVERSED AND REMANDED.

Gallivan & Finch, A.M. Spradling and Ward & Reeves for appellant.

(1) The marriage contract is unlike any other contract, in this, that there are three parties directly concerned, to-wit, the man, the woman and society or the State, and therefore the defense set up in paragraph three of defendant's answer was a lawful one and the court erred in striking it out. Trammell v. Vaughan, 158 Mo. 214; 9 C.J. 339; Sanders v. Coleman, 97 Va. 690; Travis v. Schnebly, 68 Wash. 1; Kantzler v. Grant, 2 Ill. App. 236; Allen v. Baker, 86 N.C. 91; Shackleford v. Hamilton, 93 Ky. 80. (2) The court erred in excluding testimony of non-expert witnesses offered by the defendant as to the acts, conduct and statements of defendant, in order to lay the necessary foundation for such witnesses to give their opinion as to the mental condition of the defendant. Baker v. Mardis, 1 S.W. (2d) 226; Hunter v. Briggs, 254 Mo. 54; Huffman v. Huffman, 217 Mo. 230; Sharp v. Railroad, 114 Mo. 94; State v. Williamson, 106 Mo. 162. (3) The court, having admitted testimony by plaintiff that she had no knowledge of the mental incapacity of defendant, should have admitted testimony offered by defendant as to her knowledge of defendant's mental condition. Powell v. Railroad Co., 229 Mo. 274; Gourley v. Callahan, 190 Mo. App. 666; Enyeart v. Peterson, 184 Mo. App. 519; Hays v. Railway Co., 182 Mo. App. 393. (4) In mitigation of damages defendant was entitled to show that plaintiff did not love the defendant and was seeking to marry him because she thought he had money and property. 9 C.J. 373; Fisher v. Oliver, 172 Mo. App. 18. (5) While testimony as to defendant's financial condition was competent, the testimony offered for that purpose by plaintiff, was incompetent and highly prejudicial in that: (a) It was hearsay. Fougue v. Burgess, 71 Mo. 389; State v. Levy, 168 Mo. 521. (b) And being objectionable as hearsay, does not become competent because reduced to writing. Traber v. Hicks, 131 Mo. 180; Julian v. K.C. Star, 209 Mo. 35. (c) It was incompetent because no authority was shown for its being filed in the office of the circuit clerk. Chouteau v. Chevalier, 1 Mo. 343; Hale v. Palmer, 5 Mo. 403; Haskinson v. Adkins, 77 Mo. 537. (d) Nor was it shown to have any connection with any proceedings in a court having jurisdiction and adjudicated to be correct. (e) It purports to show a personal estate of $915,670.44 without any evidence of the correctness of the property listed, its value or the ownership thereof, and no opportunity to defendant to cross-examine the unknown author of the document as to his means of knowledge, or as to the correctness of the statements set forth, or as to the value or ownership of the property listed. Evidence which is calculated to mislead the jury as to the wealth of the defendant is harmful and constitutes reversible error. Traw v. Heydt (Mo. App.), 216 S.W. 1009. (6) The court erred in permitting plaintiff to offer evidence as to the property of the Ben F. Marshall Land & Mercantile Company without showing any connection of the defendant therein or therewith. Traw v. Heydt (Mo. App.), 216 S.W. 1009. (7) Instruction 5 for plaintiff was erroneous because a comment on the testimony of the doctors, and further erroneous in that it told the jury that the testimony of such witnesses as to actual facts learned by them upon examination was merely advisory, therefore failing to differentiate between actual facts testified to by such witnesses as Dr. Fry and Dr. Vickery and expert testimony. Green v. Railroad, 132 Mo. App. 81; 22 C.J. 522, sec. 609; People v. Wheeler, 60 Cal. 581; Britt v. Railroad, 61 S.E. 603. (8) Instruction 7 is erroneous because it permits a recovery against the defendant although the jury believes from the testimony that he was a moron and so mentally defective that his offspring would be likewise mental defectives, provided the jury found that he had sufficient mind to comprehend the nature of the marriage contract and the duties entailed upon him thereby, for the reason that it is in conflict with Instruction 2 given for plaintiff and Instruction 10 for the defendant. Crone v. United Ry. Co., 236 S.W. 654; O'Brien Co. v. Sievert, 256 S.W. (Mo. App.) 555; Carroll v. Young, 267 S.W. (Mo. App.) 436; Jaquith v. Plumb, Inc., 254 S.W. (Mo.) 89.

H.E. Alexander, W.E. Coffer, J.M. Haw and William P. Powers for respondent.

(1) Appellant's first point, while good as an abstract proposition of law, avails nothing here, for the reason that the court let in all evidence offered to show the possible effects of a possible defective offspring of appellant, under other parts of appellant's answer, and the objectionable feature of paragraph 3, of the answer was that it was based upon a report that somebody had given appellant, as an excuse for appellant's refusal to marry. This paragraph is bottomed upon hearsay of the most indefinite sort, and the court rightly struck it out. Jones on Ev. (3 Ed.) sec. 297; State ex rel. v. Rogers, 79 Mo. 283; Snider v. Free, 114 Mo. 360; Sec. 1232, R.S. 1919; Nichols v. Hubert, 150 Mo. 620; Exter v. Kramer, 291 S.W. 469. (2) Appellant's point 2 is also too indefinite to call any specific ruling into review. West v. Meletio, 276 S.W. 611. The trial court's rulings are free from any reversible error. Ulrich v. Ry. Co., 220 S.W. 682; McGuire v. Amyx, 297 S.W. 968. Sustaining objection to the question propounded to Richardson was right. It elicits no relevant evidence. Jones, Ev., Civ. Cases (3 Ed.) sec. 364, note 27; also Sec. 675, note 29. It calls for a conclusion. Hanke v. St. Louis, 272 S.W. 933; Clark v. Railroad, 4 S.W. (2d) 843. The witness was not qualified to show he knew any acts, conduct, etc. Rookers v. Ry. Co., 226 S.W. 69; Kuehn v. Ritter, 233 S.W. 5. It is not pursued by any offer of proof. The purported offer of proof is in response to another question. Meyers v. Wells, 293 S.W. 455; McGuire v. Amyx, 297 S.W. 968; West v. Meletio, 276 S.W. 611; Glitski v. Ginsberg, 258 S.W. 1004. (3) Striking out the answer was proper, as the whole answer was irresponsive to the question: "What would defendant do?" Striking it was proper for the further reason that what might be competent was so commingled with incompetent, hearsay and conclusions that the whole was bad. No effort was made to separate the chaff from the straw. What might be competent was irresponsive and voluntary and a rank conclusion. The court made a general ruling, and if sustainable on any legal theory he cannot be convicted of reversible error. Whatever Dr. Fry had told Mrs. Marshall about his conclusion as to Ben's mentality by an examination in 1921 was hearsay, and two years before the engagement of the plaintiff and the defendant. Jones on Ev. (3 Ed.) sec. 894, note 84; also Sec. 895, note 89; Irons v. Am. Express Co., 300 S.W. 283; Coffey v. Higbee, 298 S.W. 766. (4) The evidence complained of in Point 5 of appellant's brief was competent and relevant. Jones on Ev. (3 Ed.) secs. 162, 233, 508; 17 Cyc. 306, 308; 16 Cyc. 1135, note 53; secs. 13429, 13430, R.S. 1919; Irons v. Express Co., 300 S.W. 283. Any question as to the competency of such evidence was waived by appellant by introducing and using parts of the same exhibits, and the parts that appellant so used and presented were not read into the record in the hearing of the jury by respondent. Bergman v. Truck Co., 249 S.W. 973; Ford v. Stevens Co., 232 S.W. 222; 4 C.J. 703, secs. 2613, 2614. (5) Appellant's father owned the Marshall Land & Mercantile Co., and no effort was made to show the contrary. That was treated by all parties as true. Its stock and assets are a part of the estate covered by the will. No error was committed by the court. Fuller v. Robinson, 230 Mo. 50; Wilbur v. Johnson, 58 Mo. 600. (6) Instruction 5 is an approved instruction, and its giving was not reversible error. Jones on Ev. (3 Ed) sec. 372; Grave v. Schmidt Estate, 293 S.W. 375; State v. Hyde, 234 Mo. 253; Thompson v. Ish, 99 Mo. 160; Clingenpeel v. Trust Co., 240 S.W. 177. Even if it was not perfect appellant offered nothing to clarify it and cannot now convict the trial court of error in giving it. Guthrie v. Fields, 299 S.W. 143; Trepp v. State Natl. Bank, 289 S.W. 540; Boyer v. Mo. Pac. Ry. Co., 293 S.W. 386; Haberman v. Kuhs, 270 S.W. 399. (7) Instruction 7, given for respondent, is not subject to the attack leveled against it. It says nothing about a moron. It is in line with the principle of law embodied in Instruction 2, for respondent. The matter of mental deficiency and its speculative consequences is taken into account. Mental deficiency was the basis of the speculative possibility of appellant begetting morons, imbeciles and idiots calamitous to society embodied in appellant's Instruction 10. The jury found against that theory on the facts. Liese v. Myer, 143 Mo. 547. The instruction was proper, and did not mislead the jury. Bird v. Thompson, 96 Mo. 424. Respondent was not required to include the theory of the defense in her instructions, but did so after the court intimated he would refuse them if she did not. State v. Cox, 270 S.W. 117.

DAVIS, C.

This is an action for the breach of a contract of marriage. The jury returned a verdict for $15,000 in favor of plaintiff, and defendant appealed from the judgment entered on the verdict.

The facts submitted in behalf of plaintiff warrant the finding that plaintiff, then a young woman in her nineteenth year, still attending school, came in contact with defendant in the fall of 1923, in Charleston, Missouri, where plaintiff resided. However, she had previously met him in January, 1923. Defendant's purpose in Charleston was to attend a football game. After the game, defendant came to...