Cooper v. Bower

The opinion of the court was delivered by

Mason, J.:

Virginia Bower recovered judgment against John G. Cooper for $4000 in an action for breach of promise of marriage, and the defendant prosecutes error.

One of the principal contentions of the defendant is that the trial court erred in overruling an objection to this question, asked with respect to a conversation, had before'the action was begun, between the witness and the plaintiff:

“I will ask you to state to the jury what, if anything, she said about any agreement or understanding that she had with Mr. Cooper to marry, and his conduct in relation thereto?”

A part of the answer was as follows:

“ ‘Well,’ she says, T believed Mr. Cooper and trusted him, and I find he is trying to go back on me. . . . We were engaged to be married — he agreed to marry me as soon as the six months' was up, and I heard over the telephone where he was fooling with another woman; got stuck on another woman. He told her as soon as he got me out she would move right in.’ ”

The admission of this evidence is sought to be justified upon the authority of a line of decisions holding that under some circumstances in a breach of promise action the plaintiff may give evidence of her own declarations, made during the existence of the engagement, for the purpose of showing the mutuality of the. contract — that the plaintiff as well as the defendant had consented to it. The cases are not in harmony, and it is difficult to deduce a general rule from them. They are collected in volume 5 of the Cyclopedia of Law and Procedure, at page 1012, notes 5, 6, 7, 8, 10 and 11, and volume 3 of Wigmore on Evidenc0e, section 1770, notes 2 and 3. Additional cases are State v. Sortviet, 100 Minn. 12, 110 N. W. 1001, Lewis v. Tapman, 90 Md. 294, 45 Atl. 459, 47 L. R. A. 385.

Declarations by the plaintiff of the existence of the agreement to marry have been held to be admissible, not as proof of the contract, but as affecting the measure of damages by showing additional humiliation to the plaintiff. (Reed v. Clark, 47 Cal. 194; Liebrandt v. Sorg, 133 Cal. 571, 65 Pac. 1098.) The present case seems to be one in which the declarations of the.plaintiff of the fact of her engagement to the defendant might be competent as tending to show her own consent to it, for this reason:, the defendant produced several witnesses who testified in substance that the plaintiff had said she would not marry any one, although she had an offer to marry a rich man. And where it is permissible to show that the plaintiff had said she had agreed to marry the defendant it can hardly be a ground of serious objection that her incidental reference to the defendant’s promise to marry her is also admitted, since that would be a natural if not necessary accompaniment to the agreement on her part. But the question objected to went beyond this. It called for the plaintiff’s narration of the defendant’s conduct in the matter. This portion of the question was incompetent on any theory, and the answer to it was manifestly prejudicial, as tending to arouse feeling against the defendant. Its admission therefore requires a reversal of the judgment unless the error was waived or cured. When the question quoted was asked the defendant objected to it as incompetent. The objection was overruled, and the defendant excepted. The witness-then said, “I could state that better if I would state it just as it occurred, in my own way.” The plaintiff’s attorney responded, “Very well.” The witness then gave the answer already referred to. The plaintiff’s counsel maintain that the words “very well” are to be regarded as constituting a new question, or a repetition of the former question, and that as no objection was interposed between it and the answer the objection previously made must be considered to have been abandoned. To hold this would be to exact unreasonable pertinacity of counsel conducting a trial. The objection to the inquiry had been once made and ruled upon. The suggestion of the witness and the reply of the attorney did not change the situation, and there was no occasion for a renewal of the objection or for its restatement.

It is also contended that the defendant waived the error (1) by bringing out the same matter upon cross-examination of the witness and by cross-examining upon matters not referred to in the examination in chief, (2) by permitting evidence of a similar character to be given by another witness without objection, and (3) by not moving to strike out the objectionable part of the answer or asking an instruction to the jury to disregard it. Of these contentions it may be said in order: (1) The evidence having been admitted over a proper objection the defendant was entitled to cross-examine upon it without wáiving the exception, although in doing so the objectionable testimony was repeated; and so far as the cross-examination went outside of the examination in chief it did not relate to the matter objected to in the direct examination; indeed, the two conditions would seem to be incompatible. (2) The testimony of the other witness concerned an entirely different conversation, and the declarations of the plaintiff which it covered related only to the agreement to marry- — -not to the defendant’s conduct. (3) So far as the answer was responsive it was not necessary to move to strike it out or to ask an instruction to disregard it in order to preserve the benefit of the objection to the question; the portion of the answer which has been quoted and discussed was responsive; the answer did include volunteered statements of the witness on other subjects, but their presence, although not objected to, did not affect the matter under consideration one way or the other.

The trial court gave an instruction as follows:

“Certain witnesses have testified to declarations made by plaintiff prior to the time when the contract is alleged to have been broken tending to prove a promise or consent on the part of plaintiff to marry the defendant. These declarations are competent and may be considered by the jury to show the mutuality of the contract.”

This instruction did not cure the error, for it did not in terms or by implication withdraw from the consideration of the jury the testimony regarding the plaintiff’s declaration concerning the defendant’s conduct.

A second assignment of error is based upon the contention that the plaintiff was precluded from recovery by the fact that her own testimony showed affirmatively and conclusively that the promise to marry upon which she relied, if given at all, was made in consideration of her consent to future illicit intercourse. No question is involved as to the general law on the subject, for the court properly instructed that under such circumstances no recovery could be had. The only controversy is with regard to the fact. To determine this it is necessary to state a part of the evidence in some detail. The plaintiff testified that she became acquainted with the defendant through doing housework for him while he was living with his second wife, from whom he was subsequently divorced; that after the divorce was granted, December 26, 1905, he visited her several times at the place where she was working; that during these visits they discussed a plan for her -to keep house for him; that he told her he would like to have her for his wife and for her to come to his house and keep house for him until the six months from the date of the divorce were up; that he did n’t want her to work any longer after he had made arrangements to get married; that on January 26, 1906, she went to his place, after which the question of marriage was talked between them about every day. Her examination in chief then proceeded as follows:

“Ques. What was finally agreed upon between you and Mr. Cooper? Ans. After I was there—

“The court: What was said?

“Plaintiff’s attorney: Between you and Mr. Cooper concerning the matter of getting married, after you went there ? Ans. After I was there about two weeks, then he told me he would like to have me be mutual with him; that he wanted me to have intercourse with him so that he could be true to me; he said he could not wait six months.

“Q. What was said about the question of getting married? A. He said that just as soon as the six months was up, the 27th of June, we were to be married.

“Q. And what did you say? A. I consented.

“Q. And agreed to it? A. Yes, sir.

“Q. State, after that, what the facts were about whether you did have intercourse with him. A. Yes, sir.

“Q. At different times there at his house? A. Yes, sir.”

According to her statement these relations continued until May 26, when Cooper asked her to sign several receipts — which she retained and which were introduced in evidence — and upon her refusal ordered her out of the house and told her he did not intend to carry out his contract. One of the receipts read as follows:

“Topeka, Kan., May 26,-1906.

“Received of John G. Cooper two dollars, it being the balance due me for work, labor and other demands physically, mentally and sexually.

Her testimony upon cross-examination was in part as follows:

“Ques. You say in this petition that this contract was made to get married on or about the 10th day of February? Ans. We talked more about it then.

“Q. Is that true now, or is n’t it true? A. It is true in one sense of the word, because that is when he asked me about that time to be sexually mated with him; to be mutual with him.

“Q. Did he tell you — did you refuse to do that at first? A. I did until he said he wanted to be true to me and that, he could not wait until the six months were up.

“Q. That' he would marry you if you would do that? A.. That just as soon as the six months were up we would be married then.

“Q. If you would have sexual intercourse with him he would marry you at the end of the six months; that is what he said? A. Yes, sir.

“Q. And then you did have sexual intercourse with him? A. Yes, sir. •

“Q. In response to that promise ? A. Yes, sir.

“Q. Now, that arrangement was satisfactory to you, was it? A. Yes.

“Q. Now, this was on February 10 ? A. It was some time near that date, about two weeks after I went there; maybe a little later. It might have been a week later, I don’t remember the date.”

The testimony quoted seems to establish that the express contract there referred to was based upon an unlawful consideration, and to point to that specific contract as the one upon which the plaintiff relied. We do not discover that so far as relates to this particular transaction the plaintiff’s admission was ever withdrawn or explained away. However, there was other evidence sufficient to support a finding that an offer to marry had been made and accepted before the plaintiff became the defendant’s housekeeper. The defendant’s counsel claim that the plaintiff must recover if .at all upon the contract made after that event, because in the petition and in the instructions the agreement relied upon is described as having been made on or about the 10'th day of February. Of course the exact time of the promise is not material, but there was a tendency throughout the trial to use the date named — the 10th of February — to identify the agreement said to have been reached after the plaintiff moved to the defendant’s house. It can not be presumed, however, that the trial court so used it in his charge to the jury. There having been some evidence that an agreement to marry had been arrived at before the matter of illicit intercourse was mentioned between the parties, there was room for the jury to find the existence of a valid contract.

A further claim is made that no recovery should have been allowed because the alleged promise to marry was given, and the action for its breach was begun, before the expiration of six months from the date of the defendant’s divorce. The statute (Gen. Stat. 1901, § 5142) provides that every decree of divorce shall recite that it does not become absolute and take effect until the expiration of six months from its date. This provision, however, has been interpreted as a mere restriction upon marriage within that time. (Durland v. Durland, 67 Kan. 734, 74 Pac. 274, 63 L. R. A. 959.) Upon the rendition of a decree of divorce the parties cease to be husband and wife. Neither may lawfully marry again within six months, but either may during that period make a legal contract to marry after its expiration. The petition in this case was filed June 8, 1906, not only before the arrival of the time agreed upon for the performance of the alleged contract but before the defendant could lawfully have- performed it. The evidence, however-, was complete and undisputed that if the defendant had ever promised to marry the plaintiff he had absolutely repudiated the promise. His principal contention throughout the proceeding has been that he never made such an engagement. He is not in a position to insist that the action was prematurely brought.

(96 Pac. 794.) SYLLABUS BY THE COURT. 1. Evidence — Form of Objections — Self-serving Declarations. Where a witness is asked what a party, in whose behalf he is called and examined, had said about the subject-matter of the litigation, an objection to the question on the ground that a self-serving declaration is thereby called for is sufficiently indicated by the use of the term “incompetent”; and the addition of the words “irrelevant and immaterial” do not so far detract from its force as to render it unavailing' on review. 2. -General Objection, on Oral Examination, to Testimony yn Part Admissible. The rule that a general objection to ■ evidence will not avail when any portion thereof is admissible does not apply without modification to an objection, made in the course of the oral examination of a witness, to a question which includes several different propositions, a part of which are not subject to the objection. Ordinarily it is incumbent upon the examiner to frame his-question so that in its entirety it is free from the objection made; otherwise the objection should be sustained.

The trial court gave an instruction correctly stating the general rule as to conditions under which punitive damages may be allowed in breach-of-promise cases. The defendant maintains that under the evidence there was no opportunity for the application of such rule, and that the conduct of the plaintiff as shown by her own testimony was such as to forfeit any claim to other than compensatory damages. This, however, was a question for the jury to determine.

Other assignments of error are not thought to. require discussion. The judgment is reversed, with directions to grant a new trial.