Smith v. McPherson

HENSHAW, J.

This action was brought to recover damages for the breach of a promise of marriage. The complaint averred that on the fourth day of November, .1912, plaintiff and defendant, both being in all respects competent to enter in the marriage state, agreed to marry and that defendant promised to marry plaintiff; that from time to time thereafter he renewed this promise until finally on the thirteenth day of August, 1913, he violated his promise and refused either then or thereafter to marry plaintiff. Trial was had before a jury, which gave its verdict in the sum of ten thousand dollars for plaintiff. From the-.judgment which followed and from the order denying defendant’s motion for a new trial this appeal has been taken. The evidence on behalf of plaintiff established that when she was a girl a little over fifteen years of age and defendant was conducting a hotel in Portland, Oregon, she was employed therein as housekeeper or manager. Defendant represented to her that he was unmarried and on his promise to marry her she permitted him to have sexual intercourse with her. This was in 1902. She thereafter learned that he was married but that his wife had begun an action for divorce against him. She permitted this relationship to continue under his repeated promises that he would marry her when his wife had secured a divorce and he was a free man. His-wife did secure a divorce and married again. The defendant then came .to California, bringing plaintiff with him, and engaged in the hotel business in San Diego and in other places. This relationship between them continued, saving that in' California the defendant repre

[146]

sented her to he his wife, they held themselves out to the world as husband and wife, and acted in all respects as husband and wife. From time to time he renewed his promise of marriage, naming in each instance the date when the marriage would take place. As the time arrived he would put her off by fixing another date. She had entered into this relationship with him in childhood; it had continued ever since; she felt unable to break away; she hoped each time he would fulfill his promise, but each time he had disappointed her. In 1912 he told her “not to worry, that everything would be all right, that they would get married in three months’ time.” Plaintiff’s testimony to this effect is corroborated by a witness whp was present at this conversation. Finally, in August, 1913, when plaintiff was confined to her bed, defendant said to her in the presence of the same witness, “Although I have promised to marry you several times I have no such intentions of doing so, and I never will; you and my people can go to hell, as far as I am concerned. Mabel here is a friend to both of us and I suppose she is wise enough to keep her mouth shut. ’ ’ Thereafter plaintiff brought this action.