Opinion
No. 29883.
May 23, 1932.
1. EVIDENCE.
In suit for breach of marriage promise, evidence of plaintiff's admissions that there had never been an engagement held competent.
2. APPEAL AND ERROR. Breach of marriage promise.
In suit for breach of marriage promise, admitting plaintiff's letters written after alleged breach to prove she admitted promise was never made held prejudicial error.
3. BREACH OF MARRIAGE PROMISE.
For statements made after breach of marriage promise to be admissible, they should have a direct and potential value upon parties' relation at time of or prior to breach.
4. EVIDENCE.
Admission should possess same degree of certainty as would be required in evidence it represents, mere conjecture regarding what might have happened not being admissible.
5. APPEAL AND ERROR. Breach of marriage promise.
In suit for breach of marriage promise, admitting evidence that plaintiff threatened defendant after breach and prior to suit held prejudicial error.
6. WITNESSES.
In suit for breach of marriage promise, evidence impeaching plaintiff's denial that she threatened defendant after breach held inadmissible.
7. WITNESSES.
Witness may not be impeached by things having no bearing on issue.
8. BREACH OF MARRIAGE PROMISE.
In suit for breach of marriage promise, instruction that mere fact that defendant was wealthy did not entitled plaintiff to recover held proper.
9. BREACH OF MARRIAGE PROMISE.
For recovery in suit for breach of marriage promise, there must have been mutual agreement which could be established; mere affection between parties being insufficient.
10. TRIAL.
In instruction, facts of case should be simply stated rather than referring jury to declaration to decipher facts from it.
APPEAL from circuit court of Leflore county. HON. S.F. DAVIS, Judge.
J.A. Tyson, and O.L. Kimbrough, of Greenwood, for appellant.
An admission should possess the same degree of certainty as would be required in the evidence which it represents and hence mere conjectures or suggestions as to what might have happened if circumstances had not occurred are not competent. Neither should an alleged admission be considered where the subject matter to which it refers is left uncertain.
22 C.J., par. 332, page 300.
Admissions or declarations to be competent must have been expressed in definite, certain and unequivocal language.
1 R.C.L., par. 16, page 481.
Admissions or declarations of defendant may be shown as tending to prove a promise on his part to marry plaintiff although they were made after the alleged breach, or even after the action was commenced unless they are so equivocal that they might mean one thing as well as another.
9 C.J., par. 67, pages 351-352; Rudd v. Dewey, 96 N.W. 973.
No evidence can be given of any fact having a tendency to aggravate the damages which has occurred after the commencement of the suit. If no evidence of any fact occurring after the suit commenced can be given to aggravate damages it seems very reasonable and entirely reciprocal that no such evidence ought to be received to mitigate the damages. Evidence showing a change of feeling is no defense.
Miller v. Hayes, 11 Am. Rep. 154.
Evidence tending to show the feeling of the plaintiff towards the defendant after the breach of the contract, tho relating only to that time, is never admissible.
Robertson v. Craver, 55 N.W. 493; Edwards v. Edwards, 61 N.W. 413-414.
The admission of the letter making derogatory reference to other people were utterly and totally incompetent. They had no reference in the remotest way to the relation of the parties prior to the date of the alleged breach of the contract of marriage. These references to other persons and to other things were matters not even collateral to the subject-matter, but were matters totally foreign thereto and wholly disconnected therefrom.
A statement that one will not appeal is not an admission of liability.
106 Ill. 643.
A statement that a person will claim no damages is not necessarily evidence that he has suffered no damages. It is not an admission that he had no claim for damages at the time of making the statement. It may be rather an assertion of a wrong sustained coupled with a statement that he will not seek redress for the wrong.
Driscoll v. Dauton, 36 N.E. 495-497.
The infallible test as to whether a matter is collateral within the meaning of this rule is this: Would the cross examining party be allowed to prove it as a part or in support of this case? If not, then it is incompetent and irrelevant, for whatever is improper to be proved directly cannot rightfully be proved indirectly.
Williams v. State, 73 Miss. 820.
It is true that, on cross-examination, great latitude is allowed and that a witness may be asked by the cross examining party as to collateral matters, as to which he could not be examined in chief, but the cross examining party in such case is bound by the answers, and cannot contradict them.
Williams v. State, 73 Miss. 820.
It is generally admissible, and often advantageous, to cross examine upon collateral or even immaterial matters, and the refusal of the court to sustain the objection as to this was correct.
Contestant's objection was not directed at the right point. While it was entirely proper to cross examine on the immaterial matter, it was not allowable to impeach the witness as to that matter.
Tucker v. Donald, 60 Miss. 460.
The granting of the following instruction was erroneous:
The court instructs you that the mere fact that defendant is a wealthy man does not entitle plaintiff to recover, but, as set forth in other instructions in this case, it is necessary for plaintiff to prove by a preponderance of the evidence all the material allegations of her declaration, and unless the plaintiff has met this burden, it is your duty to find for the defendant.
It is a dangerous practice to call special attention to an isolated fact and thus, by making it prominent, lead the jury to the opinion that it is of greater significance and weight than other unmentioned facts in the case which may be of no less importance, for the jury will feel bound to regard the fact, thus isolated for their consideration, as the controlling if not the only important fact in the cause which should govern them in making up their verdict. It is a general rule that an instruction should not single out particular facts and thereby give undue prominence to them, as such practice tends to mislead the jury.
14 R.C.L., par. 48, p. 780; New Orleans R. Co. v. Statham, 42 Miss. 607, 97 Am. Dec. 478; Daniel v. Daniel, 4 So. 95.
The jury was entitled to have the law of the case, as given by the court, written out in full in the instructions. To require the jury to resort to the pleadings in the case, to patch up and piece out the instructions, is calculated to confuse and mislead them.
Sou. Ry. Co. v. Ganong, 99 Miss. 540, 55 So. 355.
An instruction which was argumentative, a charge on the weight of the evidence, and also singled out and gave undue prominence to certain portions of the evidence, to the exclusion of the remainder is erroneous.
Potera v. City of Brookhaven, 95 Miss. 774, 49 So. 617; Odeneal v. Henry, 70 Miss. 172; Jacksonville Electric Co. v. Adams, 150 Fla. 429; 7 Ann. Cas. 241, 30 So. 183.
The general rule is that all instructions must be confined to the issues, made by the pleadings and the evidence in support thereof, and no instruction should be given which tenders an issue that is not supported by the pleadings, or which deviates therefrom in any material respect.
14 R.C.L., pars. 50, 784.
If an instruction is not thus based on the evidence it is erroneous in that it introduces before the the jury facts not presented thereby, and is well calculated to mislead and induce them to suppose that such a state of facts in the opinion of the court was possible under the evidence, and might be considered by them.
14 R.C.L., par. 51, page 786; Carney v. McGilvary, 119 So. 157; Solomon v. City Compress Co., 69 Miss. 319; Hooks v. Mills, 57 So. 545; Gulf S.I.R.R. v. Meyers, 75 So. 244.
The court erred in admitting the testimony of threats alleged to have been made by plaintiff against the person of defendant after the breach of the alleged contract of marriage.
Schmidt v. Durnham, 46 Minn. 227, 49 N.W. 126.
A betrothment may legally be inferred from the proof of circumstances and conduct which ordinarily accompany or succeed such a relation between the sexes, pointing to a future inter-marriage. Evidence of a continued course of accepted and devoted attentions by the male to the female, accompanied with an apparent dedication of the society of each to the other, and the manifestation of reciprocal confidence, and with mutual conduct consistent with proper delicacy and just marital expectations and requirements, is proper for the consideration of a jury in settling the question of the existence of a promise of marriage, whether made in express terms, or by a reciprocal unequivocal understanding between the parties that they were plighted to each other, and were bound to a future marriage.
Goil v. Wallace, 24 N.J.L. 291.
Osborn Witty, and Gardner, Odom Gardner, all of Greenwood, for appellee.
Admissions or declarations of defendant may be shown as tending to prove a promise on his part to marry plaintiff although they were made after the alleged breach, or even after the action was commenced unless they are so equivocal that they might mean one thing as well as another.
9 C.J., par. 67, pages 351-2; 4 Am. Eng. Ency. of Law (2 Ed.), page 901.
Subject to the general rules evidence which legitimately tends to throw any light on the actual relations of the parties in respect to the matters at issue is admissible.
9 C.J. 350.
On the trial of action for breach of promise, any evidence written or oral, tending to shed light upon the issues of the cause, and which tend to disclose the actual relationship of the parties in reference thereto, is admissible.
Baumle v. Berde, 124 P. 1083, 41 L.R.A. (N.S.) 841.
An admission made after the breach is competent if it relates to the feelings of the party before the breach.
Robertson v. Craver, 55 N.W. 493.
A general objection is not sufficient where a part of evidence was admissible, but objections must be specific, specifically made to the incompetent parts.
Wilkerson v. State, 134 Miss. 853, 98 So. 770; Gardner v. State, 145 Miss. 215, 110 So. 589; Whittington v. State, 160 Miss. 705, 135 So. 190.
The instruction in reference to the wealth of the defendant is a correct statement of the law.
The giving of the instruction which required the appellant, "to prove by a preponderance of the evidence all of the material allegations of her declaration was not reversible error."
Southern Railway v. Ganong, 95 Miss. 540, 55 So. 355.
The instruction containing the words "had it been agreeable to her" is not designed to and is not calculated to have a damaging effect and could not have by the wildest stretch of the imagination influenced the jury in the least. This instruction needs no defense at our hands.
The evidence as to threat made by plaintiff was relevant to show the attitude of the appellant and to throw light on whether or not she brought the law suit in good faith.
Nolan v. Glynn, 163 Iowa 146, 142 N.W. 1029, Ann. Cas. 1916C, 559.
Argued orally by O.L. Kimbrough, for appellant, and by H.T. Odom, and F.M. Witty, for appellee.
The appellant, Miss Lilly Lanham, brought suit against the appellee, Frank A. Wright, for damages for a breach of promise of marriage. There was a verdict for the appellee, Frank A. Wright, in the court below, from which this appeal is prosecuted.
The appellant, Miss Lilly Lanham, testified that she became engaged to marry Frank A. Wright in February, 1924; that they had been associated together prior to that time and he had been calling upon her, and that they had fallen in love with each other, and that the engagement continued until between the 23d and 28th of May, 1927, when the appellee, Wright, declared his intention not to carry out the marriage contract and breached the engagement, giving as a reason therefor that he did not want to marry anybody, that he did not want to be tied up for life. The appellant testified that she remonstrated with him about his action and urged him to consider the situation she would be left in by reason of his long association with her, and by the fact that it would be known that the marriage contract had been breached, and that he had taken up a considerable portion of her life, etc.
The appellee, Wright, denied that he had been engaged to marry the appellant, and, of course, that he had not breached any contract of marriage.
It appears that, at the time of the beginning of the courtship and the keeping of company between Miss Lanham and Mr. Wright, she was about thirty-one years of age, and Mr. Wright was fifty-six or fifty-eight years of age, there being considerable discrepancy in their ages.
Mr. Wright testified that he had been very much attached to Miss Lanham, and regarded her very highly, and had been in love with her, but, as stated, denied that he had ever been engaged to marry her.
It appears from the evidence of Miss Lanham that, at the time Mr. Wright proposed to her and desired to marry her, she was in need of medical treatment, having a throat that needed an operation and some nasal trouble, and that she suggested to Mr. Wright that it would be best, before marrying, for her to take the necessary treatment for her ailment; that Mr. Wright expressed satisfaction at this course and assisted her financially in taking the treatment, Mr. Wright being a man of considerable means, while Miss Lanham was without means except from earnings from her employment in a drug store. It also appears that she had the operation performed in Memphis, and, as her throat was in a rather had condition, she was advised by her physician to go to New York and there take treatment from an eminent specialist named in the record, which she did, and in which she was assisted financially by Mr. Wright. During the time she was in New York taking this treatment she secured employment and paid a portion of her expenses. She was finally advised to go to Florida, as the climate there was more favorable to her than New York or Memphis, and she spent three or four months in Florida. Her testimony shows that Mr. Wright, while the engagement was pending, desired to dispose of some of his property, so that he could retire from business and travel, and he asked her with reference to her willingness to travel, and that she assented thereto, and that the marriage was postponed; and that it took considerable time for negotiations to dispose of his business property. She further testified that her relations with Mr. Wright, or rather their relations to each other, were splendid and affectionate, and that she was devoted to him, being very much in love with him, and that he desired to buy her some diamonds, and especially a diamond ring, but that she did not care for diamonds, being, as she testified, a woman of simple taste, and as she expressed it, not a "diamond woman."
Mr. Wright denied offering her diamonds and a diamond ring, but, throughout his testimony, he expressed his appreciation of, and regard for, Miss Lanham, and admitted that he had been in love with her.
This, therefore, is a case where there is a direct conflict in the evidence as to the existence of the engagement to marry.
After the marriage contract was breached, as testified to by the appellant, and after their relations were terminated, Miss Lanham went to Chicago to take a secretarial course, and while there she wrote certain letters, some to Frank A. Wright, and some to other parties, which were admitted over objection. In addition to this, testimony was admitted of threats made by Miss Lanham against Mr. Wright of personal violence after the alleged breach of the marriage contract. Evidence was also offered that she admitted to certain parties, after the alleged breach of the marriage contract, that there had never been any engagement between her and Mr. Wright.
Of course, admissions that there had never been an engagement were competent. Miss Lanham denied making these statements or admissions that there had never been an engagement.
We have examined the letters admitted in evidence, written after the alleged breach of promise, and are of the opinion that they were not admissible, and that their admission constituted prejudicial error. In order for admissions or statements made after the breach of the contract to marry to be competent as evidence, they should have a bearing and probative value to prove the issues involved. They should have a direct and potential value upon the relations of the parties at the time of the alleged breach, or prior thereto. An admission should possess the same degree of certainty as would be required in the evidence which it represents, and mere conjecture or suggestions as to what might have happened if the circumstances had been different are not admissible.
We do not see what light these letters would shed upon the issues involved in this suit. In a letter to General Keesler dated September 3, 1928, she made the statement that: "I feel that I want to write to you to tell you that there is not a word of truth in the rumor which still seems to be going the rounds down there, about my suing Frank. I simply want you to know the truth, believing you to be my friend, as well as Frank's." This letter was written after the alleged breach of the marriage contract and prior to the filing of the suit. The letter further goes on to express appreciation and gratification that Mr. Wright was taking a higher social stand, and some of his associates were disapproved by the writer, and to deplore the fact that he had allowed himself to be drawn into low company, and also expressed the hope that Mr. Wright would find some lovely good woman and marry her, as the writer believed that in so doing he would make for himself a safer and happier place in the years to come. She also said that she would always love Frank, and that "the memory of our friendship is too sacred to me to let any one else in ever." It further contained the statement that her heart was still bleeding from the fracture of its fondest tie, and stated: "General, I believe that I am more charitable, more understanding and more sympathetic toward all the mistakes that flesh is heir to, and to life as a whole. Therefore, I suppose that suffering is an acid test for character, sure enough."
This letter was inadmissible and was prejudicial. It does not matter what her idea was at the time the letter was written as to whether she would bring suit or not. She proved by it her sincerity, but that did not affect her right to bring a suit. There is nothing in the letter, in our opinion, to show that there had been no prior engagement.
In another letter dated January 6, 1928, written from Chicago, to Frank A. Wright, she took him to task for alleged association with common women. Some expressions contained in this letter would indicate that the parties referred to were of shady character. The following excerpt will indicate same: "Frank, I cannot believe that you are aware of Miss ____'s standing in Greenwood, and Miss ____ bah! Miss ____ with her dyed hair is just about as common as a woman gets to be. And Frank, if you knew the things she said about you up there at Goodman's in the presence of several persons, when she returned from market last year, I don't think you would be risking your reputation on her." Another expression in the letter is: "I cannot feel that you want to sacrifice your reputation by going with persons whose standing you know nothing about. Those `old birds,' or should I say `crows,' are after what little worldly goods they think you possess. Wake up! Go with real women, whom you will find very entertaining and charming." It also contains these expressions: "Believe it or not, I wish you would settle yourself and marry some real nice woman who would be good to you and make a lovely home for you. There are plenty of that kind down there. As times goes on, you are going to wish you had done this."
The expressions in this letter, hoping Mr. Wright would marry some nice woman, and expressing a desire for him to associate with good women, of course was calculated to prejudice the jury against the appellant, especially if the parties referred to as "old birds" and "crows" did not deserve this characterization as the letter implies.
The other letters all tend to show that, at the time these letters were written, the appellant, Miss Lanham, was most solicitous of Mr. Wright's welfare. The expressions contained in said letters, however, do not indicate with any certainty, nor could any conclusion be drawn from them with any reasonable certainty, that there had not been a previous engagement between Miss Lanham and Mr. Wright.
It, perhaps, may take some time for unrequited love to change into hate. It may take some time for the sweet wine of love to turn into vinegar of hate, but it frequently does that. The fact, if it be a fact, that Miss Lanham should wish Mr. Wright well, and hope that he would marry well, is not, we think, inconsistent with the fact that she had previously been engaged to and expected to marry him herself. According to her view, he had breached this contract. Nothing had been held out, according to his evidence, to make her believe that Mr. Wright would change his attitude toward her. There was, therefore, little reasonable hope of a resumption of their engagement, but the expressions of affection in the letters might indicate the existence of a hope of such resumption.
In addition to admitting these letters, containing the matters referred to, S.R. Coleman was permitted to testify to threats of violence made by Miss Lanham against Mr. Wright prior to filing the suit, and subsequent to the alleged breach of contract.
We do not think S.R. Coleman's testimony, in any respect, is competent, but it had a damaging effect, or, at least, was prejudicial and liable to prove damaging to the plaintiff's cause before the jury. There is no suggestion in the testimony that affects the character of either of the parties, other than might flow from the bringing of an unmerited action on the one hand, or of the breach of a solemn agreement to marry after taking all the years of time during the marriageable age, on the other hand.
It is admitted by all of the counsel that the parties were of good character and high standing. See Miller v. Hayes, 34 Iowa, 496, 11 Am. Rep. 154; Robertson v. Craver, 55 N.W. 493; Edwards v. Edwards, 93 Iowa, 127, 61 N.W. 413, and Rudd v. Dewey, 121 Iowa, 454, 96 N.W. 973.
In addition to what we have said, Miss Lanham had been examined at length about her statement to General Keesler, and the letters referred to, and as to the threats testified to by Sam R. Coleman. She had denied making the threats, and the effect of the admission of this evidence is an impeachment of Miss Lanham herself on matters about which a contradiction was not permissible. Williams v. State, 73 Miss. 820, 19 So. 826. In that case the rule is fully stated, and discussed, and it is held to be erroneous to permit a witness to be contradicted upon testimony not material to the issue.
In Tucker v. Donald, 60 Miss. 460, 45 Am. Rep. 416, it is held that much latitude is allowed in cross-examinations, and witnesses may be asked many questions that are irrelevant to the issue, but that it is not allowable to impeach the witnesses as to such matters. The rule, of course, is founded in common sense and justice. It would not be fair to contradict a witness about things that have no bearing on the issues.
Complaint is also made of the granting of an instruction for the defendant that the mere fact the defendant is a wealthy man does not entitle the plaintiff to recover, etc.; it being contended that singling out the fact that the defendant was wealthy is giving undue emphasis to one phase of the case. We do not think the instruction is subject to the criticism made. It is the law that the mere fact that a person is wealthy does not operate to allow a recovery. The liability, if any, exists from the facts, and not merely from the financial condition of the parties.
It is also complained that instruction No. 2, given for the defendant, is erroneous. That instruction reads as follows: "The court further instructs you that even though you may believe from the evidence that the defendant was in love with plaintiff and desired to and would have married her, had it been agreeable to her, nevertheless, the plaintiff is not entitled to recover anything unless you believe, by a preponderance of the evidence, that there was, as set forth in plaintiff's declaration, an actual or express agreement to marry, and that defendant breached that alleged contract in the manner set forth in plaintiff's declaration."
We do not see that this instruction is reversible. It is true, as a matter of law, that no action would lie merely from the fact that the defendant was in love with the plaintiff, and the plaintiff in love with him; and that he would have married her had it been agreeable to her does not authorize a suit for failure to perform the marriage. There must have been an agreement which could be established, and the mere existence of affection between the parties, and one party being agreeable to the marriage, is not enough, if this agreement had not been mutual between the parties.
The above instruction given for the defendant referred to the declaration for the hypothesis upon which the jury could rely instead of a hypothesis in the instruction itself. We have often condemned this practice. The declaration is usually couched in technical and complicated language. The facts of the case should be clearly and simply stated in the instructions, for the jury to more easily understand it, rather than referring them to the declaration to decipher the facts from it.
For the errors indicated, the case will be reversed and remanded for a new trial.
Reversed and remanded.