6 Mont. 226 | Mont. | 1886
This is an appeal from a judgment and from an order overruling a motion for a new trial. It appears that after the jury had been called and examined as to their competency, but before they had been sworn to
Exceptions were duly saved to the action of the court in overruling said challenge and in ordering a special venire to issue, and though the record does not contain the evidence upon which these exceptions are based, yet it seems to be conceded in the argument that at the time the cause was called for trial, there were but twenty-three jurors in the regular panel, and that a trial jury not having been completed therefrom, an open venire was issued, and twelve men summoned from which a jury for the trial of the cause was completed.
Our statute upon this subject is very plain and explicit. The county commissioners are required to select the names of one hundred persons lawfully qualified to serve as jurors, from the county assessors’ books, and from the names so selected, to draw the names of thirty persons, who shall be summoned as trial jurors; and at the commencement of
It is the right of a party to have a full panel from which to select a jury for the trial of his cause. It is his right to have this panel selected by the commissioners from the tax payers of the county, and not until it is ascertained that a jury cannot be obtained from the panel thus provided can a special venire rightfully issue. If the full panel of twenty-four becomes depleted, by reason of sickness or other cause during the term, it is the duty of the court to cause the same to be filled from the one hundred names selected by the commissioners. The panel being full, and having become exhausted by reason of challenges for cause or peremptory challenges, during the formation of a jury for the trial of any particular cause, then, and not until then, may an open venire issue to complete the jury for that cause. The issuing of a special venire in a particular cause raises no presumption that the one hundred names selected by the commissioners have become exhausted. If a special venire is issued before the regular panel of twenty-four has become exhausted in the formation of a jury for any particular cause, or if a party is required to select a jury for such cause from a panel of less than twenty-four regular jurors, or if, the regular panel not being full, resort is had to an open special venire to complete the jury for the pending trial, then the jury so formed is not such a jury as a party is entitled to, or that is authorized by law. It is not every twelve men that can be found that form a lawful jury. They must be men selected from the proper place, and drawn and summoned according to law. A requisite number of persons having the qualifications of jurors will not
It is the right of a party at the commencement of a trial to have a full panel of twentjwfour jurors from which to select a trial jury. Kennon v. Gilmer, 4 Mont. 450.
It was error, therefore, to have compelled the defendant and appellant to select a jury from a panel of less than twenty-four regular jurors, and was error to have issued an open venire to complete a jury partly formed from a panel of less than twenty-four jurors.
This was an action to recover damages for a breach of promise of marriage. It is alleged in the complaint, and also in the answer, that the respondent contracted to live with the appellant as his mistress at the rate of $25 per month; and that she did so live with him at the city of Bozeman, Montana, for the period of more than one year; and that subsequently the same relation was resumed and continued in the state of California for about the same period.
At the trial the court, among other things, instructed the jury as follows:
“If, from the evidence, the jury should find that defendant made repeated statements to the plaintiff that he -would dispose of his property in Montana and take her to some mutually satisfactory country, there to spend their lives together, the presumption would be that he intended to live with her in a lawful manner, and from such declarations, taken with declarations of attachment and affection, the jury can infer a promise of marriage.”
Confronted by the admissions of both these parties that they had lived and cohabited together for years in an unlawful manner, we do not think that any presumption -whatever arises that if they should live together again it would be in a lawful manner.
In any event, what might be inferred from such a state of facts is for the jury, and not for the court, and any statements or declarations made must be interpreted in the light of all the circumstances and conditions surrounding the parties at the time the statements are made, which interpretation and the effect to be given to such testimony is for the jury.
There are no special damages alleged in this complaint. There are no allegations that the defendant entered into the contract and broke it Avantonly, maliciously, or wickedly, or that that he did anything to unnecessarily wound the feelings, to injure the reputation, or to destroy the future prospects of the plaintiff. It is only when these elements enter into the case that punitive or vindictive damages are allowed. They are allowed as a punishment for the fraud or malice of the defendant, rather than as compensation to the plaintiff. Suth. on Dam. 316-328.
In determining the damages for loss of marriage, where no special damages are alleged, the jury may take into view the money value or worldly advantages, separate from considerations of sentiment and affection, of the marriage, which would have given her-a permanent home and an advantageous establishment; and if her affections were in fact implicated, and she had become attached to the defendant, the injury to her affections may be considered as an additional element of damage. Id. 323.
The record does not show that the plaintiff’s affections were in any way implicated in this matter. She lived and cohabited with the defendant as his mistress for money, at
The following instruction, given in a case similar to the one we are considering, and approved by the supreme court of Massachusetts in 1866, as expressing the rule of damages with fullness and accuracy, and the elements upon which they are based, is also approved by us as stating the true rule of damages in cases of this kind, where there is no allegation or proof of fraud or malice on the part of the defendant:
“ That if the jury found that the defendant had broken his contract, and not acted in good faith towards the plaintiff; she was entitled to receive damages, to be computed on the principle of indemnity and reasonable compensation, and not in any event as vindictive damages; that in the position of the evidence, and as one element of damages, in that event, they would have a right to consider the disappointment of her reasonable expectations, and to inquire what she had lost by such disappointment, and for that purpose to consider, among other things, what would be the money value or worldly advantages (separate from considerations of sentiment and affection) of a marriage which would have given her a permanent home and an advantageous establishment; that they were also to satisfy themselves whether her affections were in fact implicated, and whether she had become attached to the defendant, and if such were the fact, the wound and injury to her affections were to be considered as another and additional element in the computation of her damages; and also that they would have a right to take into consideration generally, in computing her damages, whatever mortification and pain or distress of mind she suffered, resulting from a refusal by the defendant to fulfill his promise.” Harrison v. Swift, 13 Allen, 115.
There was no evidence in the case to justify such an instruction. The instructions to the jury must be applicable to and authorized by the evidence. There is no evidence in the record showing or tending to show anything in aggravation of damages. The complaint alleges a promise of marriage by the defendant and his failure to perform. The answer is a specific denial. All the proof in the case was directed to this plain, direct issue.
Mr. Sedgwick says (Meas. Dam. 4:23): “No evidence can be given of any fact having a tendency to aggravate the damages which has occurred after the commencement of the suit.” This rule was followed in the introduction of the evidence. There was no testimony in aggravation of damages, but there was an instruction in aggravation of damages.
Defendant’s motion for a continuance was overruled, and this is also assigned as error. The term of court began on the 2oth of May; the answer was filed on the 29th of May, and the replication on the 1st day of June. The motion for continuance was filed June 11th. The affidavit in support of the motion, among other things, sets forth that one Dora Nosarins, who resides at Los Angeles, in the state of California, would testify that the plaintiff and one Noman were living and cohabiting together at Los Angeles immediately prior to and at the time of the commencement of this action, and that the defendant, at the time of making said affidavit, had just informed his attorneys of said fact. This testimony was material. If for no other purpose, it
These pleadings were made up and the issues framed after the term of court had commenced. Neither party is called on to prepare for trial until after the issues are formed. Not until that time is there anything to try. Causes cannot properly be set for trial until they are at issue. After the issues are formed, the parties ought to have a reasonable time in which to bring in their witnesses, take depositions, and prepare for trial. Here the issue for trial was formed during a term of court, and it was then found that a material witness for the defendant was in the state of California, and we have been unable to discover any good reason why the defendant should not have béen given an opportunity to have taken the deposition of such witness. Opportunity ought to have been given, unless the plaintiff was at the time ready and willing to admit that the absent witness, if present, would have testified as set forth in the affidavit for continuance. Granting or refusing motions for continuance rests very much in the sound discretion of the court. But in cases where a party has used due diligence, and there has been no neglect, and a continuance would secure the production of the absent testimony, and the same is competent and material, it would be an abuse of discretion to overrule the motion for continuance.
The judgment is reversed and the cause remanded for a new trial. Judgment reversed.