94 Vt. 103 | Vt. | 1920
The declaration, based on an alleged breach of promise to marry, contains four counts: The first, declaring on a promise made on, to wit, May 2, 1916, to marry when requested; the second, on a promise made on, to wit, May 2, 1916, to marry within a reasonable time; the third, on a promise made on, to wit, March 28, 1918, to marry within a reasonable time; and the fourth (called in the record the substitute count) on a promise made on, to wit, April 10, 1901, to marry thereafter, ánd further alleging that said agreement was by agreement from time to time postponed from timé to time until October 5, 1918. All the counts allege the breach to consist of defendant’s marrying another woman on the day last named. Defendant pleaded the general issue to all the counts, and the statute of limitations to the alleged contract set up in the last count. No replication being filed to the plea of the statute, issue was treated as joined thereon by force of a rule of practice.
The charge also included, as an element of damage, any injury which the plaintiff may have suffered to her reputation or future prospects. An exception was saved to its submission to the jury, and to the charge given in that respect. The exception was general and no ground stated. As in the preceding instance discussed, it is now urged (a) that the instruction was without evidence to support it, and (b) that it was outside the scope of the declaration. But as neither of these grounds was called to the attention of the trial court, neither is before us; question (b)
The court further charged on the question of damages as follows : ‘ The circumstances and the effect in a pecuniary way, or her loss of pecuniary advantage that was the natural and probable result of the breach of this promise of marriage, for the damages which the plaintiff suffered by reason of the breach of this contract, if there was a contract and a breach, is wholly a question of fact for your consideration and determination. ’ ’ Defendant excepted to the charge permitting the jury to “consider, in the subject of damages, the circumstances and effect in a pecuniary way of her loss of pecuniary advantage, the natural and probable result of the breach.” These quotations are from
The defendant moved to set aside the verdict for that (1) it is against the weight of the evidence; (2) the damages are excessive'; and (3) the jury were plainly influenced by bias, prejudice, or passion. A hearing was had on the motion, and to the overruling of it defendant excepted. He says in his brief that all the evidence is before this Court on this exception, on the ground that the verdict was contrary to instructions' or wholly unsupported by the evidence. But the ground thus stated is hardly shown by the record which governs. In disposing of the motion, the court filed its written opinion and the same is made a part of the record.
Whether the verdict was so great as plainly to indicate that, in reaching it, the jury disregarded the testimony, or acted from passion or prejudice (said in Barrette v. Carr, 75 Vt. 425, 56 Atl. 93, to be the true rule), and so it should have been set aside on the motion, and failing this, makes an abuse of discretion apparent, is a question requiring careful consideration.
In considering the motion on this ground the trial court made a comparative examination of cases of the same kind, involving a similar question, both in this State and in other jurisdictions, some of which resulted in setting aside the verdict because excessive, and- some not. The result of such examination is shown by the record. The evidence was considered as bearing
“In this case the jury had other evidence on which to base their verdict, for it appeared that the plaintiff and defendant were intimately associated for a period of about eighteen years. The evidence tended to show that a promise of marriage was made in 1901; that the time was postponed by mutual agreement until he could attain his ambition; to enable him to accumulate his wealth she was induced to forego the pleasure and comforts of married life, supporting herself, consulting and advising with him; that he told of his financial success from time to time, and in 1918 arrangements were made to consummate this marriage in five of six weeks; that he represented to her his fortune to be from seventy-five to one hundred thousand dollars, and that her home was secured. She was then thirty-nine years old; she had waited from girlhood to middle age, possibly sacrificing the hope of a family for the wealth he was to accumulate. She refused to believe that her confidence was to be violated until she learned of his marriage to another. • This seemed to be without excuse or
“The parties had a fair trial by a well selected and impartial jury, and no exhibition of passion, prejudice, or sympathy was apparent. These, with other facts developed in the evidence, preclude the court from using its discretion to set aside the verdict on the grounds of the motion, for to do so, in the circumstances, might justly be regarded as an abuse of its discretion. Besides, we are all agreed that the verdict ought not to be disturbed. The motion is therefore denied. ’ ’
The defendant moved in arrest of judgment, and has presented in his brief, the question raised under three heads: (1) That the alleged promise set forth in the substitute count is a different cause of action from those set up in the original declaration; (2) that the substitute count is defective in that it does not allege that the promise was in writing; and (3) that the verdict was general with nothing to show on what count the damages were assessed.
In overruling this motion, (to which defendant excepted), the court said it could not say that the different counts are for different causes of action; that they allege the sam'e breach, at the same time.
The third ground of the motion is based on the theory that the counts are for different causes of action. However, in view of our holding to the contrary, the defendant’s position in this respect is untenable.
Judgment affirmed as of the date it was rendered by the comity court.