Lohner v. Coldwell

FLY, Associate Justice. Appellee sued appellant to recover damages arising from a breach of promise of marriage. The damages were laid at $15,000, and upon the trial, before a jury, a verdict and judgment for $1,000 were obtained by appellee. We conclude that the testimony shows that appellant promised to marry appellee, and that he breached that promise, and that she sustained thereby the amount of damages found by the jury. The first and second assignments present error in the action of the court in overruling exceptions to the petition. The petition presents a cause of action in a clear and concise manner, and was not open to the objections to it. It was alleged that appellant and appellee had agreed to marry, and that she incurred expense in preparing for the marriage which was set for a certain time. It was also alleged that, “through the promise of defendant, plaintiff was induced to give him the devotion of her heart, and was induced to entertain that affection toward defendant which every good woman should entertain towards the man she expects to marry,” and that “she had prepared herself to become for defendant a loving and dutiful wife.” Draper, a witness for appellee, was permitted to testify to a conversation that occurred between him'and appellant, and appellant ol> *447 jected, because the conversation occurred after the suit was instituted and while the witness was endeavoring to affect a compromise; because the evidence of appellant’s declaration that he had intended to marry appellee would induce the jury to believe that a contract of marriage had been made by appellant. The objections were properly overruled. There was no evidence of any effort on the part of the witness to effect a compromise, and the admissions of appellant were properly admitted, and the jury could draw what conclusions they deemed reasonable and just from the admissions. Proof of the lameness of appellant would have been no answer to his breach of his promise to marry appellee, and would have had no tendency to show that he would not have made the promise, and was properly rejected. We do not consider that the remarks of the judge in excluding the testimony worked any injury to appellant. There is no merit in the fifth and thirteenth assignments of error which are presented together in the brief of appellant. The fifth assignment complains of evidence of breaches of promise made by appellant prior to November 2, 1894, and no such evidence having been introduced, the assignment is without foundation. The charge, the refusal of which is complained of in the thirteenth assignment of error, would have presented an issue that was not supported by proof. There was no evidence that appellee had discarded and broken off the engagement until appellant, by failing to appear at the time appointed for the nuptials, had caused appellee to reproach him for his conduct and to tell him not to come again to see her. At the time that this was done, he had not called to fulfill bis delayed vows, but to give a very unsatisfactory and not very flattering reason for his failure to appear at the appointed time. Womanly delicacy and self-respect demanded that appellee should resent the insult offered her. Appellant had breached his promise before he received his dismissal. Evidence of failures on the part of appellant to meet his engagement to marry in December, 1894, was properly admitted as bearing on the amount of damages that should be allowed by the jury. There is no force in the seventh assignment of error. There was nothing said or done by the court in connection with the testimony of appellee on the subject of her affection for appellant, that would indicate to the jury the opinion of the court thereon, or that tended to prejudice appellant’s case before the jury. Appellant offered to prove by appellee that there had been insanity in her family, and that she had so sworn on the trial of her brother who had been charged with murder, but the evidence was excluded by the court. The evidence was properly excluded. Had it been alleged and proven by appellant that the engagement had been entered into by him in ignorance of the fact that insanity had existed in the family of appellee, and that he had broken off the engagement and refused to consummate the marriage because of such insanity, the evidence'might have been admissible in mitigation of damages, but there was no allegation to that *448 effect, and there was no offer, in connection with the proof desired, to show that appellant had, in ignorance of the taint of insanity in the family of appellee, entered into the marriage contract and broken it off when he ascertained the facts. If appellant knew of the family infirmity at the time he entered into the contract (and, if it was true, the circumstances indicate that he knew it) he cannot mitigate the- damages for his breach of promise on that ground. The tenth assignment of error is untenable. It was proper to prove the admissions of appellant, made at any time, as to his intentions in connection with the matter of marriage with appellee. Evidence of his expressed intention was proper as tending to corroborate testimony that he actually proceeded to carry his intentions into effect by making the marriage contract. The court instructed the jury that, “A mere intention to marry, without a positive agreement to marry, would not be sufficient to sustain an action.” The court properly refused to permit appellant to enter into an investigation of the age of appellee’s young brother. There was no relevancy or materiality in the testimony. If the object was to fix the age of appellee, we are of the opinion that her age was not material to the issue. There was fully as much culpability in breaking a promise made to an elderly woman as to a young one, but if testimony as to appellee’s age was important, both appellee and her mother had testified fully in regard to it. The special charges asked by appellant were rightly refused. The law of the case was fully and fairly submitted in the charge given by the court. The proper measure of damages was submitted to the jury. Glasscock v. Shell, 57 Texas, 215; Suth., Dam., sec. 988. The verdict, under the circumstances, was not excessive. •The judgment is affirmed. Affirmed.