Graves v. Rivers

123 Ga. 224 | Ga. | 1905

Evans, J.

(After stating the facts.) 1-3. An action to recover damages for a breach of promise to marry is predicated on the contract and its breach. All that is necessary to be alleged in the petition is the promises to marry and their terms, and the defendant’s breach. Where special damages are not claimed, these averments comprise all the issuable facts. 5 Cyc. 1007. The facts related in the petition begin with a courtship six years before the bringing of the suit, and the narrative proceeds with a description of the first engagement, how and why it was broken off, when it was renewed, the time the marriage was to be consummated, the wiles of the defendant to secure postponement of the nuptials, and his refusal to marry the plaintiff. Many of the averments in the petition might be treated as surplusage, but the essential' elements of the form of action, are alleged. The mutual promises to marry, the final agreement that the marriage contract was to have been on Christmas preceding the filing of the suit, the readiness of the plaintiff to marry at that time, the refusal of- the defendant to comply with his contract, and his final abandonment of his attentions are alleged with sufficient definiteness to set out a cause of action. Defendant demurred to the petition, on the ground that the cause of action was barred by the statute of limitations. It is not pointed out what limitation period is applicable. As the suit sounds in contract and is brought within a year from the alleged breach of the contract, we can not perceive how the plaintiff can be barred.' The special demurrers to the paragraphs of the petition w'hich allege seduction as au aggravating element of damages are without merit. The seduction is alleged to have bben subsequent to the promise to marry and pending the engagement to marry. . The seduction of the plaintiff under promise of marriage may be alleged and proved in aggravation of damages. 3 Enc. PL & Pr. 688, and cases cited. Although the form of action is ex contractu, yet the measure of damages, in a case-where the plaintiff is entitled to recover, may include full compensation for the pain, mortification, and wounded feelings suffered by her in consequence of the dishonorable conduct of the defendant; and the amount of the recovery must be left to the enlightened conscience of impartial jurors. Parker v. Forehand, 99 Ga. 743. One of the special demurrers challenged the sufficiency of the attachment affidavit and bond and the authority of the court to issue the attachment. The demurrer did not specify any particular defect, and as the grounds of the affidavit were statutory and ’ sufficiently alleged (Kennon v. Evans, 36 Ga. 89), and both affidavit and bond were prepared after the code forms (Civil Code, §4529), we can not see any irregularity • in either. The affidavit for attachment was made before the judge of the city court of Fayetteville, and the writ of attachment was issued by him. The attachment was returnable to the city court of Fayetteville, and the judge thereof had jurisdiction to issue it. (Acts 1902, p. 126.) Hence we conclude that the court did not err in overruling all demurrers except the special demurrer to the eighth paragraph, which was sustained.

4. Six grounds of the amended motion for a new trial complain in various ways that the plaintiff was permitted to testify over the defendant’s objection. The plaintiff was an incompetent witness, and the court erred in holding that she was competent. At common law a party to a suit, interested in the result of the trial, was disqualified from testifying, because of his interest. The evidence act of 1866 permitted certain persons to testify notwithstanding their interest, but in express terms the ban of disqualification was left on parties to an action for breach of promise of marriage. Civil Code, § 5272. The evidence act of 1889 (Civil Code, § 5269) superseded only one clause of the act of 1866, but there is nothing in that act which removes the incompetency of those persons disqualified by the other clauses of •the act of 1866. Section 5272 explicitly .and positively declares that nothing contained in section 5269 shall apply to any action for breach of promise of marriage. While in England and in many of the States the common-law rule of exclusion in this class of cases has been relaxed so1 as to allow the parties to testify, with the qualification that their testimony must be corroborated, in this State a party is absolutely excluded as a witness.

Where the party is denied the right to testify, resort is usually had to circumstantial evidence to prove or disprove the complaint. Since commonly marriage proposals aud their acceptance do not transpire in public or in writing, they must be established by the observed conduct of the parties or their admissions. •“When marriageable persons conduct toward each other as engaged persons commonly do, and as those who are not engaged ■do not, the reasonable and fair inference is that they are in fact what they thus hold themselves out to be, engaged: and in a breach of promise suit the jury is justifiable in so finding.” Bish. Mar. & Div. § 197. Likewise any other material issue in the ■case may be supported by proof of various circumstances which point to the existence of the fact sought to be established.

5. Exception is taken to tire following charge of the court: “I charge you that if you believe from the evidence that J. M. ■Graves, the defendant, did contract marriage with the plaintiff, then the breach thereof would make the defendant liable, that is if he failed to carry out this contract.” This charge is open to the objection that under it the plaintiff would be entitled to recover for any breach of the contract, although the defendant may have been legally justifiable in refusing to carry out his promise to marry; and the exception is well taken.

Judgment reversed.

All the Justices concur, except Simmons, •O. J., absent.