Roper v. Clay

Decision Date31 July 1853
Citation18 Mo. 383
PartiesROPER, Defendant in Error, v. CLAY, Plaintiff in Error.
CourtMissouri Supreme Court

It is no defence to an action for a breach of a promise of marriage, that the plaintiff had previously contracted to marry another person.

2. The plaintiff, in her petition, averred, that at the special instance and request of defendant she had promised to marry him, (without averring that defendant had promised to marry her,) and that defendant, not regarding his said promise, &c., but contriving to injure and deceive the plaintiff, had married another person. Held, sufficient after verdict, although it would have been bad on demurrer.

3. Where the first count in a declaration is for a breach of promise and the second for seduction, the second may be disregarded. But a judgment will not be reversed because evidence was admitted in support of the second count, for the reason that such evidence was admissible under the first count, in aggravation of damages.

Error to Wright Circuit Court.

McBride & Edwards, for plaintiff in error.

I. The petition does not show that the defendant promised to marry the plaintiff. The promise must be mutual. (6 Bacon's Ab. [Bouvier's ed.] 461; 2 Chitty's Pl. 322 and notes.)

II. An action for seduction cannot be maintained in the name of the party seduced, but only in the name of some one standing in the relation of master or parent.

III. The evidence offered to prove that, at the time of the alleged promise by the defendant, the plaintiff was engaged to be married to a third person, should have been admitted. If such was the case, the defendant's promise was null and void, and the plaintiff has no right to complain of a breach of it. It was also proper, in mitigation of damages.

F. P. Wright, for defendant in error.

I. The petition is substantially good, and is sufficient after verdict. (11 Serg. & Raw. 270; Kirby, 270; 4 Mass. 263; 4 J. J. Marsh. 20; 9 Mass. 189.)

II. The plaintiff had the right to allege and prove the seduction, in aggravation of damages. (Spencer v. Green, 3 Mo. 225.)

III. Evidence of a prior engagement by plaintiff was properly excluded. No such defense was set up in the answer, and if it had been, it

would not help the defendant. If he was instrumental in breaking off that engagement, it is rather an aggravation of his guilt.

RYLAND, Judge, delivered the opinion of the court.

The plaintiff, Roper, filed her petition in the Wright Circuit Court, in March, 1852, against the defendant, Clay. The petition contained three counts, setting forth three causes of action against the defendant; the first count was for a breach of promise of marriage; the second was for seduction and getting the plaintiff with child; the third was for mal-practice as a physician, whereby the plaintiff's health was greatly impaired, &c. The defendant filed his answer denying the matters charged in the plaintiff's petition. He denied that he ever promised to marry the plaintiff; denied that he ever seduced the plaintiff, or that he ever had carnal knowledge of the plaintiff; denied any mal-practice by him as a physician upon said plaintiff, and denied all the material charges contained in plaintiff's petition. At the May term of the court, in the year 1853, the cause was tried, and the jury found the issues upon the counts for breach of marriage and seduction for the plaintiff, and the issue upon the count for mal-practice for the defendant, and assessed the plaintiff's damages at one thousand dollars. The defendant moved for a new trial, which being overruled, he excepted. He also filed his motion in arrest of judgment, which was overruled, and defendant excepted and filed his bill of exceptions, and brings the case here by writ of error.

1. The questions necessary for the consideration of this court arise, principally, upon the motion in arrest of judgment. The plaintiff in error, however, complains of the ruling of the court, in refusing to permit him to prove that, at the time spoken of by the witnesses, of the promise to marry between plaintiff below and the defendant, she, the plaintiff below, was engaged to marry a third person. The plaintiff in error contends, that if such contract to marry a third person did exist, the subsequent contract with him was null and void, and the plaintiff below had no right to complain of a breach thereof; and at least that such evidence should have gone to the jury in mitigation of damages. He also contends, that the evidence given did not warrant the jury in finding their verdict. I have mentioned these points to let the plaintiff in error see that they did not escape our consideration. There is nothing in them requiring the interference of this court. The existence of a promise on the part of the plaintiff below to marry a third person, cannot avail the plaintiff in error. He was in no manner affected thereby. His intervention though, at such a time, and promise to marry, and his subsequent conduct, as found by the jury, surely ought not, in the minds of any intelligent jurors, to have the effect of mitigating the damages sustained by his victim.

As to the evidence not being sufficient to warrant the verdict of the jury, this was a matter for their consideration. There was evidence tending to support the charges in the petition of the plaintiff, at least the charges in the first and second counts, and the jury having found their verdict for the plaintiff below, this court will not disturb it on the ground of sufficiency or insufficiency of evidence.

2. Upon the motion to arrest the judgment below, a much more important question arises, which will now be investigated. The first count in the plaintiff's petition alleges the breach of the promise to marry. The second count charges the seduction of the plaintiff and her impregnation by the defendant. The second count contains no cause of action to the plaintiff; she cannot allege her seduction and her impregnation against her seducer, as a cause of action, in her own name. This count, therefore, is wholly insufficient in itself to support a judgment after verdict.

The first count attempts to set forth the promise to marry and the breach of the promise. This count is very defective; it is drawn with too much haste, and with too little attention to the rules of pleading. A demurrer would have been sustained to it had one been filed; but as there was an answer put into this count, denying the charges made therein, and a verdict upon the issue made on it by the jury in favor of plaintiff, it becomes important to see if the judgment can be maintained by the effect which the verdict in this case must have.

This count is in these words: “The plaintiff states that, on the first day of December, in the year of our Lord, eighteen hundred and fifty, at the county of Wright aforesaid, in consideration that the...

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14 cases
  • Parker v. Bruner, 66205
    • United States
    • Missouri Supreme Court
    • January 15, 1985
    ...often alleging seduction as a factor aggravating the amount of damages sought. See e.g., Green v. Spencer, 3 Mo. 225 (1834); Roper v. Clay, 18 Mo. 383 (1853); Davis v. Slagle, 27 Mo. 600 (1859); Wilbur v. Johnson, 58 Mo. 600 (1875); Jordan v. Hovey, supra, Bird v. Thompson, 96 Mo. 424, 9 S.......
  • Breece v. Jett, 37824
    • United States
    • Missouri Court of Appeals
    • August 30, 1977
    ...of action rested in the father, no action could be maintained under the common law by the seduced female against the seducer. Roper v. Clay, 18 Mo. 383, 385 (1853); Jordan v. Hovey, 72 Mo. 574, 576 (1880); Anno., 121 A.L.R. 1487, 1488 (1939); Thibault v. Lalumiere, 318 Mass. 72, 73, 60 N.E.......
  • Liese v. Meyer
    • United States
    • Missouri Supreme Court
    • April 1, 1898
    ...v. Moore, 11 Ala. 36; Wells v. Padgett, 8 Barb. 324; R. S. 1889, secs. 2055, 2066; Ibid, sec. 2113; Willard v. Stone, 7 Cow. 22; Roper v. Clay, 18 Mo. 383; Davis Stagle, 27 Mo. 600; Kriffin v. McConnell, 30 N.Y. 285. (6) Where a defendant in his answer attempts to justify his breach of prom......
  • Munchow v. Munchow
    • United States
    • Missouri Court of Appeals
    • November 11, 1902
    ...than do the averments in this petition, but were nevertheless held to sufficiently imply such fact to uphold a judgment: Roper v. Clay, 18 Mo. 383, 59 Am. Dec. 314; Shaler v. Van Wormer, 33 Mo. 386; Jones v. Louderman, 39 Mo. 287; Falls v. Daily, 74 Mo. 74; Cobb v. Railway Co., 149 Mo. 135,......
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