98 Tenn. 342 | Tenn. | 1897
This is an action for damages. The declaration has two counts — one for breach of contract to marry, and the second for seduction accomplished by reason of such contract. The cause
It is assigned as error that tbe Court permitted plaintiff, over the defendant’s objection, to prove that she was a member of the church, and had been for nine years. In this there was no error. It was a circumstance bearing upon the standing and reputation of plaintiff, and was entirely competent.
Plaintiff was asked if she was not furnished with a written statement by her attorney to memorize in regard to what she would swear about an abortion and the birth of a child at Chattanooga. The Court sustained an objection to the question. In this we think there was no error. It was not a proper question to ask. She had already testified that no one wrote out a statement for her to memorize or swear to and she had seen no such statement.
Plaintiff was asked if she did not tell defendant that she intended to kill the child, and that he told her not to do so. This was objected to by plaintiff and objection sustained, and this is assigned as error. > This was not material to the issues involved. Moreover, the question was answered in the negative, and this is not error.
Dr. Hall was asked if a child prematurely born would cry. The question was objected to and the
^ It is objected that the Court erred in saying to the jury that, in order to constitute seduction, it was not indispensable that the man use seductive arts or promises, but any act or promise or deception of the man, by which he overcomes the scruples of the woman, and induces her to have unlawful sexual intercourse with him, would constitute the offense.
In immediate connection with this portion of the charge complained of, the Court added : ‘ ‘ But if the woman, without being deceived, and without any false promises, deception or artifice, voluntarily submits to the connection, the law affords her no remedy, and she cannot recover.” It will be borne in mind that the seduction was charged to have been accomplished under promises of marriage. This, taken altogether, is not erroneous, and is a plain, simple statement of the law that any jury could understand and not misconstrue.
The trial Judge said to the Jury: “You are the exclusive judges of the facts of the case, and you are the judges of the law as delivered to you by the Court.” This is an unhappy expression, and the jury may have been misled into believing that in some way and to some extent they were judges of
It is assigned that the Circuit Judge was in error in charging that seduction was a continuous act, and if by several and continuous acts, promises, and artifices, the defendant kept up his illicit intercourse until September, 1894, and the action was brought in February, 1895, then the action would not be barred by the statute of limitations. It is admitted that this is in accord with the holding of this Court in Davis v. Young, 6 Pickle, 303, but it is insisted that case should be overruled, or at least not extended to cases when the suit is by ' the seduced female instead of the father, as in that case. We have no disposition to overrule or limit the case in its application as suggested.
It is assigned as error that the verdict was a gambling verdict as to the first count. We do not so read the record, but the testimony of the jurors given in the record show to the contrary, that while they took an average of their several judgments, it was only a tentative mode of arriving at a verdict, and was not satisfactory to anyone, and was abandoned, and verdict was rendered for only half the amount of the average. The damages under the second count do not appear to have been reached
The Court was requested to charge the jury that if plaintiff consented to an abortion she made herself thereby an accomplice, and they could not believe the testimony unless it was corroborated. The Court declined to so charge, upon the ground that the rule had no application to the case, but would only apply in case of an action or prosecution for the abortion. In this we think the trial Judge was not in error. We are of opinion, however, that it was error to allow any evidence as to the abortion, for the reasons hereafter stated. The trial Judge told the jury that they might look to any indignities offered plaintiff during the trial, any imputation against her character, or impeaching her virtue, if any were made, and were untrue, as an element of damage. It is objected that this would not be so unless such charge and insinuations were wantonly and uselessly made. In Williams v. Norwood, 2 Yer., 336, it was held that if such charges were proven true they would go in mitigation of damages, and if untrue they must be- held to have been wantonly made.
The tenth assignment of error presents the question that plaintiff cannot have damages for an abortion attempted at Chattanooga, nor the indignities suffered there, because they are special- damages, not the necessary result of the breach of promise, nor of the seduction, and not set out or claimed in the declaration. The contention is, that special damages,
Likewise, the second error assigned is that plaintiff was allowed, over defendant’s objection, to prove that defendant proposed to her to submit to an abortion, and went with her to Chattanooga for that purpose, and that she suffered from the operation a. and while at
This matter of abortion, and the suffering and indignity consequent upon it, not being alleged in the declaration, and no special damages being claimed on that account, evidence in regard to it Avas incompetent, ' especially as a separate suit was pending at Chattanooga against defendant and others for this act of abortion.
The Court said to the jury: “You may give what is called vindictive damages to punish the defendant, if guilty, and deter others from doing likewise, and it is not only your right but your duty to do so.” This was error. The giving of vindictive damages is a matter of discretion with the jury, and they should not be told that it is their duty to give them. No vindictive or punitive damages were
It is further assigned as error that plaintiff’s counsel, in his closing argument, called defendant hard names, such as villain, scoundrel, fiend, hell-hound, etc., which, it is alleged, was calculated to prejudice defendant before the jury. It must be admitted these are rather harsh terms, and other language could have been used no doubt equally as descriptive 'and not so vituperative, but it does not appear that defendant asked the Court to interpose, and we cannot put the trial Judge in error under these circumstances. It is true the trial Judge, in his discretion, might have checked the counsel on his own motion, but inasmuch as defendant and his counsel did not object, the Court did not probably feel called upon to act. It is not reversible error.
It is next assigned as error that counsel for