Veall v. Sanborn

BISHOP, J.,

pro

tem.

This is an action based on a breach of promise to marry. A verdict in plaintiff’s favor for $25,000 was by the trial court reduced to $15,000, but is still too high, appellant complains. No fault is found with the proceedings that led to the judgment except the giving of two instructions, the objection to them being not that they are wrong in themselves, but that they should not have been given in this case because there was no evidence upon which to base them. We find the evidence sufficient to justify the giving of the instructions and to warrant the sum for which the judgment now provides.

The first instruction which defendant says was not warranted by the evidence reads as follows: “If you should find from the evidence in this case that the defendant has attempted to prove that the plaintiff was a lewd and base woman, and was of immoral or bad character, and that he has failed to establish and prove the same by preponderance of the evidence, and that such attempt was not made in good faith or was made without any reasonable hope or expectation of establishing such fact, then such charge and failure on the part of the defendant may be taken Into consideration by you, in fixing the amount of the damages in this case, providing you find for (from) the other issues in favor of the plaintiff.” Applying the rules “that in order to warrant the giving of an instruction it is not necessary that the evidence upon the issue be clear and convincing, it being sufficient if there be. ‘slight’: or ‘some’ evidence upon that issue (24 Cal. Jur., p. 832,

[89]

and eases cited).”

Brandes

v.

Rucker-Fuller Desk Co.,

(1929) 102 Cal. App. 221, 227 [282 Pac. 1009], and “Instructions should be based upon evidence actually adduced or upon reasonable inference from the evidence disclosed by the record.”

Kinnear

v.

Martinelli,