Murphy v. Davis

19 Cal.App.2d 316 (1937) ANNA MURPHY, Respondent,

v.

MANSELL A. DAVIS, Appellant.

Civ. No. 11170. California Court of Appeals. Second Appellate District, Division Two.

February 23, 1937. S. Ward Sullivan and Marcus R. Brandler for Appellant.

Rosalind Goodrich Bates for Respondent.

Crail, P. J.

This is an appeal from a judgment in favor of the plaintiff in an action for damages for breach of contract to marry.

Viewing the evidence in the light most favorable to the successful party in the trial court, the facts are as follows: Defendant asked plaintiff to marry him, and shortly thereafter plaintiff accepted said promise to marry defendant and gave her promise in return. In the fall of 1934 defendant renewed said promise to marry but postponed the marriage from time to time without fixing a definite date. Plaintiff, in view of the fact that she was engaged to marry defendant, was persuaded to enter into sexual relations with him. Defendant took plaintiff with him as his wife to New Mexico, Colorado, Utah and Arizona, and induced plaintiff to pose as his wife during this trip. Defendant showed plaintiff various pieces of property and discussed buying a home with her in the state of Colorado and purchased a tax deed on said property, after the property had been approved by plaintiff. Plaintiff became pregnant by defendant. Defendant stated to mutual friends that she was carrying his child and that he wished her to give birth to the child. At this time he again promised plaintiff that he would marry her.

Appellant's first contention is that "the trial court committed prejudicial error in permitting respondent to introduce, over the objection of defendant (appellant), the hearsay [318] and self-serving declarations" of two witnesses "as to her intention to marry respondent, not in the presence of the defendant, Mansell A. Davis". In this regard the record shows the following: Elsa Glomstad, an acquaintance of plaintiff, testified: "During '35 have you had any conversation with Mrs. Murphy as to whether or not Mr. Davis intended to marry her? Mr. Hess: I object to that as calling for hearsay. The Court: The objection is overruled. A. Yes. ... Q. I mean did Mrs. Murphy discuss her contemplated marriage with you? A. Yes. Mr. Hess: I object to that and move to strike it out upon the ground it is irrelevant and immaterial and hearsay, a self-serving declaration of the plaintiff not in the presence of the defendant. The Court: The motion is denied. ... Q. In the spring of '34. What if anything did she say to you? ... A. I objected to Mr. Davis walking in her room without knocking on the door. Q. You were there when he walked in? A. Yes. Q. What happened then? A. When Ann returned, I sat alone in her room at the time, and when Ann returned I told her I did not like the idea. Then Ann told me, 'It is all right. We are going to get married.' ... Q. Did you have any conversation about the trip then at all? A. Yes. Q. Anybody else besides you two? A. No. Q. What if anything was the conversation? A. She told me about the trip, the auto camps. Mr. Hess: The same objection. The Court: The same ruling. Mrs. Bates: May we understand that it goes to all this line of question? The Court: The same objection to all of this. All right, what did she say? A. She told me about the auto camp they were going to operate, and I was sure they were married. I asked her several times, 'Aren't you sure you are married?' and she said 'No.'" Mrs. Clara Smart, a sister of plaintiff, testified as follows: "Q. By Mrs. Bates: You then, following this, had a conversation with your sister some time later about Mr. Davis? A. Quite often. ... Q. By Mrs. Bates: Was there anything said about marriage? Mr. Hess: I object on the ground it is not shown to be in the presence of the defendant, irrelevant and immaterial to any issues. The Court: The objection is overruled. I will give you an objection to all this line of questioning, the same objection. A. Not at that time. Q. By Mrs. Bates: At any time did she ever talk to you about her marriage to Mr. Davis? A. She did. Q. When was