198 Mich. 263 | Mich. | 1917
(after stating the facts). The first 16 assignments of error are based upon alleged errors in the refusal of the court to charge as requested by defendant and to the charge as given. These assignments will be discussed later.
Assignments 17, 18, 19, 20, and 22 are based upon alleged errors in receiving or excluding testimony. With reference to these assignments it is sufficient to say that we find them without merit.
Assignment 21 is based upon the ruling of the court in refusing to declare a mistrial on account of the action of the plaintiff, who during a recess appears to have become hysterical. This matter was one addressing itself to the sound discretion of the trial court, who cautioned the jury with reference thereto in such manner as to fully meet the requirements of the situation.
The 24th assignment of error is based upon alleged errors committed by counsel for plaintiff in his final argument to the jury. It is unnecessary to hold that
The 7th assignment of error is based upon the refusal of the court to give defendant’s 11th request to charge, which is as follows:
“I charge you that, if you find in this case that the only consideration for the promise, if there is any promise in the case, of marriage, was a promise that, if she would submit herself to have sexual intercourse with him, he would marry her in case she became pregnant, if you find that was the only consideration, the only arrangement or contract, then I instruct you that that is a contract resting upon an immoral consideration and is void, and the plaintiff could not recover.”
The court upon this point charged the jury:
“Now, gentlemen of the jury, there is one thing that I know I have omitted, and that is this, the plaintiff claims' that the seduction that she claims occurred in this case followed the promise to marry, and that without the promise to marry she would not have submitted herself to the defendant. The defendant claims that there is evidence in the case that the seduction was based upon a promise to marry in case of the seduction resulting in the birth of a child.
' “Now, gentlemen of the jury, if you should find from a consideration of the evidence that the seduction was brought about by reason of promise of marriage in case, and only in case, the plaintiff should become in the family way by reason of this seduction, then, gentlemen of the jury, no damages can be awarded because of the seduction, and your consideration must be given only to the charge of the promise to marry. I state that because the plaintiff’s claim is that the seduction was based solely and alone upon the promise to marry. Now, putting that in another way, I will say this the plaintiff is entitled to recover damages for both the breach of promise to marry, in case you find that there was a promise, and the seduction only in*268 case you should find the seduction was based solely and alone upon the general promise to marry and upon no other promise. In case you should find that the seduction was based upon the promise to marry in case the plaintiff became in the family way, then, gentlemen of the jury, this action resolved itself into a question whether or not the plaintiff is entitled to recover damages by reason of the breach of promise to marry, and that alone.”
This identical question was raised in the case of Jaskolski v. Morawski, 178 Mich. 325 (144 N. W. 865). There plaintiff had secured a judgment for breach of promise of marriage accompanied by seduction. There the claim was made on behalf of appellant that the promise of marriage was void because the consideration was immoral. We there said:
“Counsel cite authorities which he claims sustain his contention. We have examined them, but we do not deem it necessary to decide whether he is right in his contention for the trial judge held with him, and instructed the jury.”
Then follows the charge of the court to the jury upon this question, in the course of which the trial judge said:
“Now, should you find the fact to be that the defendant promised plaintiff solely upon the consideration that she should permit him to have sexual intercourse with her, or solely on consideration that she should have sexual intercourse with him, and if she became pregnant and had a child he would marry her, and that there was no other consideration or promise, then and in such case I instruct you that the promise to marry rests upon an immoral consideration and is void, and your verdict should be for the defendant.”
We sent that case back for a new trial upon other grounds, but this portion of the charge was not disapproved by this court. While it may be said that it was not distinctly approved and a citation from the case of Spellings v. Parks, 104 Tenn. 351 (58 S. W.
If the plaintiff submitted herself to the sexual embraces of the defendant solely in consideration of his promise to marry her if she became pregnant, such consideration would clearly be immoral, and defendant’s promise based thereon would be void. The following cases are authority upon this point: Davie v. Padgett, 117 Ark. 544 (176 S. W. 333); Boigneres v. Boulon, 54 Cal. 146; Hanks v. Naglee, 54 Cal. 51 (35 Am. Rep. 67); Judy v. Sterrett, 153 Ill. 94 (38 N. E. 633); Eve v. Rogers, 12 Ind. App. 623 (40 N. E. 25); Saxon v. Wood, 4 Ind. App. 242 (30 N. E. 797) ; Sramek v. Sklenar, 73 Kan. 450 (85 Pac. 566) ; Donallen v. Lennox, 6 Dana (Ky.), 89; Edmonds v. Hughes, 115 Ky. 561 (74 S. W. 283); State v. Howard, 264 Mo. 386 (175 S. W. 58); Button v. Hibbard, 82 Hun (N. Y.), 289 (31 N. Y. Supp. 483) ; Steinfeld v. Levy, 16 Abb. Prac. (N. S.) 26; Baldy v. Stratton, 11 Pa. 316; Spellings v. Parks, 104 Tenn. 351 (58 S. W. 126); Burke v. Shaver, 92 Va. 345 (23 S. E. 749); Connolly v. Bollinger, 67 W. Va. 30 (67 S. E. 71, 20 Am. & Eng. Ann. Cas. 1350); Beaumont v. Reeve, 8 Q. B. (Eng.) 483. See, also, 5 Cyc. p. 1000, note 12.
We are not unmindful of the fact that plaintiff gave testimony which would tend to support the theory that a promise to marry was given before and quite independent of the alleged seduction. Her testimony upon cross-examination, however, was such as to warrant, we think, the submission of the question to the jury under the request proposed by defendant’s counsel.
The judgment is reversed, with costs, and a new trial ordered.