CHARLES E. BURTON, Appellant
ERNA VALENTINE, Appellee
APPEAL from a judgment of the Superior Court of the County of Maricopa. J. C. Niles, Judge. Judgment affirmed.
Mr. Henderson Stockton, Mr. Eli Gorodezky, Mr. S. N. Karam, and Mr. J. W. Cherry, Jr., for Appellant.
Mr. Anthony T. Deddens, for Appellee.
[60 Ariz. 519] STANFORD, J.
This is a breach of promise case brought for $50,000. It was tried before a jury in the Superior Court in Phoenix, Maricopa County. A verdict of $5,000 was awarded appellee.
Charles E. Burton was a well-known livestock man with interests mainly in Northern Arizona. He was a married man in the year of 1930, at the time the parties to this action first met, but was not living with his wife and was divorced from his wife, Mabel Frankfurter Burton, in California on October 31, 1932.
Appellee was the wife of Carl A. Valentine and lived with her husband at Grand Canyon, Arizona. She remained his wife until their divorce, August 20, 1931.
The parties herein first met at a country dance near Flagstaff, Arizona, in July, 1930.
It is important that we quote part of the short complaint and answer in this cause.
Quoting from appellee's first amended complaint:
"II. That during the month of December, 1930, in consideration of a proposal of marriage from the defendant, the plaintiff accepted said proposal and agreed to marry the defendant.
"III. That thereafter said promise of marriage was renewed by the defendant from time to time.
[60 Ariz. 520] "IV. That during the month of December, 1932, at Phoenix, Arizona, in consideration of an agreement by plaintiff then and there made that the plaintiff, who was then unmarried, would marry the defendant within a reasonable time, the defendant, who was then also
unmarried, renewed his said promise to marry the plaintiff within a reasonable time.
"V. That thereafter said defendant postponed the marriage from time to time but continued to renew said promise of marriage on occasions too numerous to set forth herein with any particularity, and without fixing any definite date.
"VI. That plaintiff, relying upon said promises, had always remained ready and willing to marry the defendant, but that the defendant has made it impossible to fulfill his promise to marry the plaintiff, he having married another woman on the 2nd day of September, 1936, at Riverside, California."
Quoting from appellant's answer:
"II. Denies each and every, all and singular, the allegations of Paragraphs II, III, IV, V, VI, VII and VIII of plaintiff's first amended complaint.
III. That defendant, Charles E. Burton and Susan Cusson were married in the Town or City of Sinaloa, State of Sinaloa, Republic of Mexico, on the 15th day of March, 1931, and that on the 2nd day of September, 1936, at the City of Riverside, County of Riverside, in the State of California, a second marriage ceremony was performed between the defendant, Charles E. Burton and Susan Cusson. That since the 15th day of March, 1931, defendant has at all time been a married man, and incapable of contracting marriage with the plaintiff. That at all times mentioned herein, the plaintiff had full knowledge that defendant, Charles E. Burton, was a married man as alleged herein."
In order to clearly state the contentions of appellant, we quote his assignments of error
"1. The Court erred in instructing the jury 'if you further find that by reason of the defendant's promise to marry the plaintiff, if there was such a promise, [60 Ariz. 521] and by other seductive means employed, if any, he seduced the plaintiff, and that thereby she became pregnant, you should, in estimating her damages, take these facts into due consideration in aggravation of damages as tending to increase the humiliation, grief, shame and distress, if any, which she has suffered by reason of her abandonment by the defendant, and should fix the amount of the recovery accordingly,' for the reason that seduction and debauchery is not an element of damage ...