158 Mo. 214 | Mo. | 1900
The plaintiff sues the defendant for damages for breach of contract of marriage. The petition is in two counts. The first count alleges a contract of marriage entered into between the parties on December 4, 1896, to be performed at Hartsburg, Boone county, on December 6, 1896; the procuring of the necessary marriage license, by the defendant, from the recorder of Cole county; the public announcement of the contract; the meeting of the parties at
The answer is a general denial, and special pleas. The special pleas are: 1st, an admission of the contract, the procurement of the license, the meeting at Hartsburg and an inability to procure Rev. O. A. Mitchell to perform the ceremony; 2d, a postponement of the marriage by mutual consent to an unstated time, the continuance of the defendant’s visits to plaintiff and the institution of this suit, eight days later, without notice to defendant of intention to sue, and without giving him any opportunity to carry out the contract; 3d, that when the contract was entered into the defendant believed himself to be well and physically in a proper condition to marry, but that after procuring the license and going to Hartsburg to carry out the contract, he discovered on the evening of December 5th that, without any fault, wrong or negligence on his part done after entering into the contract, he became afflicted with a loathsome, venereal and contageous disease, which rendered it unsafe, unwise, improper and morally wrong for him to marry the plaintiff at that time.
Tbe reply is a general denial.
The facts developed at the trial were briefly these: The plaintiff and defendant had formerly been engaged for many years, but that engagement was cancelled about eighteen
On the next day, Tuesday, the defendant went to Harts-burg again to see the plaintiff. The evidence is conflicting as to whether on Sunday before he left her it was agreed to postpone the marriage until he got well. He says she did. In her deposition taken some time before the trial she said she .agreed to postpone the marriage upon the advice of her brother-in-law, but on the trial she denied agreeing to a postponement , and in explanation of her testimony in her deposition said she did not know the meaning of the word postpone. At any rate she says that on Tuesday when he came to see her he told her he came to tell her he was not going to marry her. She returned to her home the following Saturday, and the next day he came to see her and told her he had been to see á doctor and was going away the first part of the next week; that nothing was said about their marrying; that he asked her if she had heard from Brown and she said no; that he then asked her if Brown was not coming out to see her that day and she said no; that he said he was and she replied she knew nothing about it; that she asked him if he was going to write to her while he was away, but he got on his horse and rode off and did not answer her. The next day she went to Fulton and instituted this suit. Under instruc
I.
The principal question in this case is whether the defendant had a right to postpone the marriage upon the appearance of the disease between the date of the contract and the date appointed for its performance. In other words, stated broadly, whether the defendant would have been justified in marrying the plaintiff, even with her consent, while he had the disease. The proposition is stated thus broadly because it is incredible that the plaintiff would have been willing to marry him, if she knew the nature and character of the disease. This too, even if the consummation of the marriage was to be postponed until he could be cured. We prefer to believe she either did not know the nature and character of the disease, or else she did not believe he was so afflicted and thought it was simply an excuse to keep from performing his contract. But there is no room for doubt upon this record that he had the disease, and there is no countervailing evidence that it made its appearance between the date of the contract to marry and the time appointed for the marriage, and without any intervening fault on his part.
Fortunately, there are few reported precedents for the conditions present in this ease. It has been held that if a party to a marriage contract develops a disease, which renders it unsafe or improper for him to marry, without intervening fault on his part between the date of the contract and the date appointed for the marriage, he is entitled to have the ceremony postponed until the result of the disease is known or he
In State v. Marcks, 140 Mo. l. c. 677, it was said by Sherwood, J., that intercourse with a woman, though she was willing thereto, by a man who was infected with a venereal disease, would constitute the act a common assault, for the fraud vitiated the consent, and in support of the statement he cited the cases of Reg. v. Bennett, 4 F. & F. 1105; Reg. v. Sinclair, 13 Cox C. C. 28; Com. v. Stratton, 114 Mass. 303.
If the principles announced in the cases hereinbefore cited be correct, it is also true that it is legally, as well as
The idea that the ceremony should be performed and the consummation of the marriage postponed until he is cured is not only intolerable but obnoxious to a proper subservance of the public interests and morals. This too, whether the woman hnows his condition and consents to such an arrangement, or not, for though she may be willing to waive the defect, or be indifferent to the condition or its consequences to her and her children, the third party to the contract, the State, has a right to and does object. If the disease is of a temporary character, such as was the case here, and could be easily cured, the defendant is entitled to postpone the marriage until he is cured, and if the disease is of a permanent character, such as was the fact in the North Carolina, Kentucky and Virginia cases cited, the defendant is not only entitled to refuse to carry out the contract, but it is his duty to do so.
II.
The instruction given by the court of its own motion was to the effect that if the disease was of a temporary character and could ordinarily be cured in a reasonable time and if the plaintiff knew its character and consented to marry him and that he should afterwards subject himself to proper treatment, then the disease constituted no defense in this case; otherwise, if the disease was permanent or rendered the defendant unfit for the discharge of marital duties. For the rea
The sixth instruction given for the plaintiff was also erroneous. It told the jury that if the plaintiff was engaged to Brown, and the defendant induced her to break that engagement and promise to marry the defendant, he not intending in good faith to marry her, such conduct was an aggravation of the plaintiff’s damages. If the plaintiff was engaged to Brown and broke the contract she was a wrongdoer even though she did so to marry defendant, and she is not entitled to recover from defendant any damages growing out of her own wrongful act in breaking her promise to marry Brown. [Hahn v. Bettinger, 83 N. W. Rep. 467.]
III.
The second count of the petition alleges that the defendant entered into the contract wilfully, falsely, fraudulently and maliciously, not for the purpose of marrying her, but to humiliate and disgrace her, and asks five thousand dollars punitive damages therefor. The third instruction given for the plaintiff authorizes a verdict for punitive damages if such was the case, and the jury gave plaintiff three thousand dollars exemplary damages, that is, three times as much for punishment as it gave her for her compensatory damages. This is, as far as we are advised, the first case on record, for maliciously maintaining a suit in the courts of Cupid. If the defendant fraudulently entered into the contract the plaintiff was entitled to.withdraw from the contract, for the defendant’s fraud vitiated her consent. If the defendant
The statement of the defendant to many persons after he returned from Hartsburg to the effect that he never had intended marrying the plaintiff, and had only taken the matter as far as he had to show Alfred Longley, Bill Gibbs and Mr. Reynolds that he could marry her if he wanted to, were unmanly, cruel and depraved, and were properly admitted in evidence to aggravate plaintiff’s damages. But they do not constitute a separate cause of action, nor can exemplary or punitive damages, as such, be recovered for a breach of a contract, of marriage. The law punishes the defendant for the breach of his contract by making him compensate the plaintiff whether his intentions when he entered into the contract were sincere or sinister. The plaintiff’s second count, therefore, stated no distinct cause of action and her third instruction was erroneous. The jury should have been told to consider these matters as an aggravation of her damages.
This action was begun eight days after the day fixed for the marriage, and before the time plaintiff was cured or could reasonably have been cured. The evidence is conflicting as to whether the plaintiff consented to the postponement, but the defendant was entitled to postpone it until he was cured, whether she consented or not. Ordinarily this would lead to
For the reasons given the judgment is reversed and the cause remanded for trial anew upon the principles herein announced.