117 Ark. 544 | Ark. | 1915
This is an action to recover damages for breach of an alleged contract for intermarriage between the parties. Tbe complaint sets f orth the allegations as to the contract of marriage and breach thereof, and also alleges seduction as a matter in aggravation of the alleged breach of contract. ' There was a verdict in favor of the plaintiff 'and defendant has appealed.
Error is assigned in the refusal of the court to give the following instruction requested by defendant:
“The jury are instructed that if you find from .the evidence that the def endant promised to marry the plaintiff solely on consideration that ¡she should permit him to have sexual intercourse with her (solely on the consideration that she would permit him to have intercourse with her), and as a result ¡of such intercourse she became pregnant, is illegal and can not be enforced in law; and in this case, if you find from the evidence that the defendant did promise to marry the plaintiff upon the consideration that she allow him to have sexual intercourse with bet, and that there was no other consideration for such promise, then your verdict will ¡be for the defendant. ”
The facts of this case did not, however, call for the submission to the jury of that issue, for there is no testimony which would have justified the jury in reaching the conclusion that the alleged promise of marriage was made by defendant in consideration of plaintiff granting him the privilege of sexual intercourse with her. Plaintiff was a domestic servant in the household of defendant’s sister, who resided with her husband on a farm in White County. Plaintiff was, as before stated, about sixteen years of age at that time, and defendant was about fifty-two years of age and a bachelor. He was living with his sister at the time and slept under the same roof with plaintiff. She testified that she arose early 'every morning and went to the kitchen for the purpose of preparing . the breakfast for the family, and that defendant usually met her in the kitchen and remained there with her while she was preparing the meal. She stated that it was under those circumstances that he wooed her and finally promised to marry her. One night during the month of January, 1913, he came to her room, according to her testimony, and proposed sexual intercourse. That was after they had become engaged to be married, and the day for marriage had been fixed. She said that she demurred, but that he insisted upon the intercourse, assuring her that because of their affection and approaching marriage no harm would ¡be done, and that if she became pregnant before the date fixed for the marriage, he would immediately marry her. ■ She yielded to his solicitation, and thereafter for a period of six months or longer, they frequently had sexual intercourse under the same circumstances, that is to say, he would come to her room at night after the family had retired. The date of the marriage had been set for a certain day in June, and she said that after that date passed without Ms 'complying with Ms promise, she told him of her condition, and that ¡he finally announced to her that he would not marry her at all. She then left the home of Ms. sister and soon 'after gave birth to a child. Defendant intermarried with another about that time. The testimony of the plaintiff was sufficient to establish the contract of marriage and the breach thereof, and also the aggravating circumstances by reason of the seduction. The defendant denied that he promised to marry the plaintiff, or that he had sexual intercourse with her, and undertook to show that improper relations existed between the plaintiff and another man. The jury evidently rejected the whole statement of defendant and accepted the testimony of the plaintiff as true. Now, there was no issue in the case as to a promise of marriage based upon the consideration of having sexual intercourse. It is true that plaintiff says that the defendant promised to marry her in advance of the day already set if she should become pregnant before that time, but that did not vitiate the 'original promise of marriage. The fact of seduction, even though it was accomplished by a promise to hasten the marriage, only afforded aggravating circumstances to be considered by the jury in assessing the damages, resulting from the breach of the original promise. . According to the plaintiff’s testimony, there was an unconditional promise of marriage, and on the other hand the defendant testified that there was no promise at all, therefore, there was no issue as to there being a conditional promise or one based upon the consideration of sexual intercourse. The instruction therefore submitted a matter foreign to the issues, and was properly refused by the court.
There are other matters discussed in the brief, but none which calls -for further discussion.
Judgment affirmed.