Wilson v. McCarty

• Decision Date: 17 October 1912
• Citation: 137 N.W. 920,156 Iowa 660
• Parties: MARY E. WILSON, Appellant, v. JOHN MCCARTY, Appellee
• Court: Iowa Supreme Court

137 N.W. 920

156 Iowa 660

MARY E. WILSON, Appellant, v. JOHN MCCARTY, Appellee

Supreme Court of Iowa, Des Moines

October 17, 1912

Appeal from Davis District Court.--HON. FRANK W. EICHELBERGER Judge.

ACTION for breach of promise of marriage. Trial to a jury. Verdict and judgment for defendant, and plaintiff appeals.

Affirmed.

T. P Bence, for appellant.

Payne & Goodson, and F. Thompson, for appellee.

OPINION

DEEMER, J.

Plaintiff is a widow, who at the time it is claimed the promise of marriage was made was sixty-two years of age. She lived at the town of Drakeville, and owned the cottage in which she lived, and some other property. Defendant, who was at the time in question seventy-seven years old, was a widower, and he, too, lived in Drakeville. Plaintiff claims that defendant called upon and courted her for more than two years, and that some time prior to July 1st he promised to marry her; that since that time he has denied the promise, and refused to marry her. Defendant denied the alleged promise, and also pleaded that plaintiff was diseased, and in such a mental and physical state that marriage was impossible. This was pleaded not only in justification of his refusal, but also in mitigation of damages. He further pleaded that plaintiff was mentally incompetent to enter into a contract of marriage that her mind is and was unbalanced, and that her case was under investigation by the commissioners of insanity; and that she was therefore incapable of entering into the marriage relation. He also pleaded that plaintiff falsely accused him with having sexual intercourse with her, and falsely claimed that, as a result thereof, she was made pregnant, and that she maliciously circulated such reports against him.

After this answer was filed, plaintiff, in an amendment to her petition, alleged, "that after said promise of marriage alleged in petition the defendant, in further abuse of this plaintiff, and to her great grief, humiliation, mortification, and mental anguish, after trying all seductive arts in his power to induce the plaintiff to have sexual intercourse with him, and in failing therein so to do, he accomplished said purpose with her by force and against her will, to her great humiliation, shame, grief, mortification, and mental anguish, and, to prevent her from taking action thereon, attempted to pacify her and quiet her by holding out to her that they were morally man and wife, and that said acts would be covered and excused by their subsequent marriage, and thus induced her for a reasonable time to keep quiet on said subject and trust in him and rely on what she supposed to be his honor; and the said seductive and sexual intercourse was brought about and accomplished by said defendant by force, under and by virtue of said contract of marriage. The plaintiff, relying upon said contract of marriage as set forth in petition, yielded up her virtue to said defendant, and was on account thereof seduced by him, which matters are hereby pleaded in aggravation of damages."

This was denied by defendant, and the defenses already mentioned were repleaded with some additions. Many other pleadings were filed, which need not be noticed at this time. On these racy issues the case was tried, and the jury found for defendant. Little, if any, of the testimony is in the record; but we may assume from the instructions that it followed the issues made by the pleadings. There are but two propositions relied upon for a reversal, and these are misconduct of defendant's counsel in argument to the jury and insufficiency of the verdict returned.

I. As to the first proposition, there is no such showing of misconduct that we may consider the point. The only record relied upon is an unverified statement, made in the motion for...