Summary
In Freed v. Killman, 192 Miss. 643, 6 So.2d 909, the rule is stated that since loss of reputation is one of the elements of damage for breach of promise, evidence that the character or general reputation for chastity of the plaintiff is bad, is admissible on behalf of the defendant in mititation of the damages.
Summary of this case from Coombs v. FazzioOpinion
No. 34886.
March 23, 1942.
1. BREACH OF MARRIAGE PROMISE.
In action for breach of promise of marriage, plaintiff was not entitled to a peremptory charge in her favor where record disclosed a completely disputed issue as to whether alleged promise was ever made.
2. BREACH OF MARRIAGE PROMISE.
One of elements of damage for breach of promise of marriage is the loss of reputation.
3. BREACH OF MARRIAGE PROMISE.
In action for breach of marriage promise, evidence that character or general reputation of plaintiff for chastity is bad is admissible on behalf of defendant in mitigation of damages.
4. BREACH OF MARRIAGE PROMISE.
The fact that plaintiff's bad reputation for chastity was known to defendant at time of alleged promise does not render it inadmissible in action for breach of marriage promise, although in such case it is not available as a bar.
5. BREACH OF MARRIAGE PROMISE.
Where bad character or reputation of plaintiff was brought about by defendant's conduct, the defendant may not avail himself of it either in mitigation or in bar in action for breach of marriage promise.
6. TRIAL.
In action for breach of marriage promise, admission of evidence that plaintiff's general reputation for chastity was bad without giving an instruction limiting effect of evidence to mitigation of damages was not error, in absence of any request for such an instruction.
Appeal from the circuit court of Alcorn county, HON. WM. H. INZER, Judge.
Chester L. Sumners, of Corinth, and Q. Austin East, of Bloomington, Ind., for appellant.
The unchastity of the plaintiff is not entitled to consideration in estimating damages, where it appears that the only person with whom the plaintiff had illicit intercourse was the defendant himself, or if he knew the plaintiff was unchaste at the time the promise was made, or knowing of such conduct, subsequently, made no objection. It is immaterial that the want of chastity was not known to the defendant until after the commencement of an action.
4 R.C.L. 168, Sec. 25.
Under some decisions evidence is also admissible to show that the character or reputation of the plaintiff was bad; but, it is held, general reputation of bad character in respect of chastity is no bar, and, therefore, the defendant must prove that the plaintiff was in fact what she is reputed to be, it being necessary that the injurious reports have a reasonable foundation. Evidence of mere accusations, rumors or suspicions is not, however, admissible for the purpose of proving a bad character or reputation.
4 R.C.L. 171, 172, Sec. 30.
See, also, Carney v. McGilvray, 152 Miss. 87, 119 So. 157; Lanham v. Wright, 164 Miss. 1, 142 So. 5.
We respectfully submit that the appellant was entitled to a peremptory instruction and that the cause should be remanded for trial as to question of amount of damages alone.
Mobile Ohio R.R. Co. v. Clay, 156 Miss. 463, 125 So. 819; Carney v. McGilvray, supra, Lanham v. Wright, supra. W.C. Sweat and N.S. Sweat, both of Corinth, for appellee.
The testimony as to the virtue and chastity of the appellant offered by the appellee was proper in mitigation of damages.
Johnson v. Caulkins, 1 Am. Dec. 103; Cole v. Holliday, 4 Mo. App. 94; Young v. Corrigan, 208 F. 431; Carney v. McGilvray, 152 Miss. 87, 119 So. 157; Shehan v. Barry, 27 Mich. 217; Miller v. Curtis, 35 Am. St. Rep. 471; Foulkes v. Selloway, 3 Esp. 236; Gulf Ship Island R.R. Co. v. Simmons et al., 153 Miss. 327, 121 So. 144; Note to Miller v. Curtis, 35 Am. St. Rep. 472; Am. Ann. Cas. 1912D, p. 962; Note Ann. Cas. 1912D, p. 964; 4 R.C.L. 173, Sec. 31; 9 R.C.L. 348, Note 59, Sec. 56; 8 Am. Jur. 872, 873, Sec. 31; Wigmore on Evidence, p. 206, Sec. 75; 9 C.J. 348, Sec. 56; 9 C.J. 356, Sec. 71; 9 C.J. 359, Sec. 77.
This court in considering whether or not a peremptory instruction was properly refused will take as true the evidence in its most favorable light to the appellee and will not hold the lower court in error where there is a strict conflict in the testimony.
Greer v. Pierce, 167 Miss. 65, 147 So. 303; Hartford Fire Ins. Co. v. Williams, 165 Miss. 233, 145 So. 94; Eastman-Gardner Co. v. Sumrall, 160 Miss. 792, 133 So. 212.
Argued orally by Chester L. Sumners, for appellant, and by W.C. Sweat and N.S. Sweat, for appellee.
This is an action for alleged breach of promise of marriage, and, as is not unusual in such cases, there was a verdict for the defendant.
It is insisted by appellant that she should have had the peremptory charge in her favor, but a careful reading of the record discloses such a completely disputed issue whether in fact the alleged promise was ever in any form made as to place it beyond the authority of the court to take that issue from the jury.
The argument to which appellant has devoted her attention in chief is that the court erred in admitting evidence on behalf of appellee that the general reputation of appellant for chastity was and is bad. We shall assume for the purposes of the present case that the evidence was sufficient to show that at the times when, as appellant alleges, the several promises of marriage were made, appellee knew of the bad reputation of appellant, or had knowledge of such facts as would put him upon notice.
In actions for breach of promise of marriage, one of the elements of damage to be considered in arriving at the amount of the award is the loss of reputation, and, as a consequence, the rule is generally recognized, and we adopt it, that evidence that the character or general reputation of the plaintiff for chastity is bad is admissible on behalf of the defendant in mitigation of the damages. 1 Wigmore Ev. (2 Ed.), Sec. 75, pp. 313, 314; 2 Jones Com. on Ev. (2 Ed.), Sec. 655, p. 1219; 8 Am. Jur., p. 872; 11 C.J.S., Breach of Marriage Promise, Sec. 44, p. 813; Notes, Ann. Cas. 1912D, p. 964. The fact that at the time of the alleged promise the bad reputation was known to the defendant does not render it inadmissible, for, in view of the reason for the rule, it remains nevertheless matter in mitigation, although not available in such case as a bar. Watson v. Bean, 208 Ky. 295, 299, 270 S.W. 801; 9 C.J., p. 373; 11 C.J.S., Breach of Marriage Promise, Sec. 44, p. 813, note 26. A close study of Carney v. McGilvray, 152 Miss. 87, 119 So. 157, relied on by appellant, will reveal that it is no authority to the contrary of what we are herein announcing.
There is a well-established exception which is that if the bad character or bad reputation was the result of, or was brought about by, the conduct of the defendant himself, and not otherwise, he may not avail of it either in mitigation or in bar, but the facts disclosed in the present case are not sufficient to bring it within the stated exception.
Appellant complains that such testimony, even if admissible in mitigation, is objectionable because it might, and probably did, mislead the jury into believing that it was sufficient to constitute a bar, and that to admit such evidence without an instruction to the jury limiting its effect was error. The answer to that complaint is, however, that appellant did not request any such an instruction, and in the absence therefor, she cannot put the court in error for a failure to give it. See Gulf Ship Island Railroad Co. v. Simmons, 153 Miss. 327, 121 So. 144.
Affirmed.