65 Wis. 487 | Wis. | 1886
This is an action for breach of promise of marriage, in which damages are sought to be recovered, not merely for such breach, but for consequent seduction under and in faith of such marriage contract. In the complaint it is further alleged that the plaintiff was thereby gotten with child. It has been on this last branch of the case that the errors complained of mainly have been committed. On a former appeal to this court (53 Wis. 462) the judgment was reversed for almost precisely the same error in instructions to the jury committed at the last trial; or, more properly stated, the error of the court in instructions to the jury committed on the first trial, and which was held fatal to the judgment, was repeated on the last trial. There must have been a strange and unaccountable misconception or misunderstanding of the opinion handed down on the first appeal — which is too plain to be easily misunderstood — that could have caused such a clear and substantial repetition of the error.
The testimony of the plaintiff on the first trial went further than the complaint charging that the plaintiff “ was gotten with child,” in this, “ that her grief thereat, the de
The plaintiff, as a witness in her own behalf, was asked: “ Did anything result, any bad consequences result, from the seduction ?” This question was objected to, and was allowed only for the reason given by the court, that the evidence was offered for the purpose of showing that the seduction had become known to the public. The witness answered: “ Tes, sir; he got me with child.” We are not prepared to say that this evidence was jsroper, even for the purpose named, to show publicity of the seduction, and are disposed to doubt it; but it became very improper when the fact elicited was 'treated as an independent cause of inj ury in the charge of the court to the jury, as will hereafter appear. But this was not all. The witness was asked in that connection: “What was the final result?” This question was also objected to, and allowed without any reason being given. She answered: “I cried day and night, for two or three weeks. I took on day and night. All at once, when I was at my sewing-machine, a miscarriage was the result.” She then stated how she thought that fact became known to the public. This evidence was clearly improper, and substantially in violation of the rule laid down on the former appeal. These two most important facts, far more serious in their consequences to the plaintiff than the mere breach of the promise of marriage, or the consequent seduction, were thus brought before the jury, and thereafter it would be simply impossible to exclude from their minds a consid
But it was in the instructions of the court to the jury, in respect to these two important facts, that the error was most flagrant. The court instructed the jury, at the request of the plaintiff’s counsel, as follows: “ In such case you may go beyond what would be a compensation for the loss of marriage, for her wounded pride, and the mental and physical suffering she has sustained on account of the breach of the marriage contract, and give such damages as may be just and fair, and for mental suffering, injury to reputation, loss of virtue, and sense of disgrace sustained by plaintiff on account of such seduction. In such case you may give a fair compensation for this additional injury.” This last clause was so general, far-sweeping, and comprehensive that it would include the plaintiff being gotten with child, and her miscarriage, and whatever other personal injuries may have followed the seduction, as proper to be considered in estimating her damages. It is stated as an “ additional injury and disgrace,” as an independent cause, with unlimited consequences. When the instruction preceding this clause had been given, the rule laid down in Leavitt v. Cutler, supra, and repeated on the former appeal of this case, was fully complied with, with the addition also of “ a sense of disgrace,” and there the instruction should have ended. But it did not; and the jury were left to their own estimate of the unliinited damages flowing from this “ additional injury and disgrace.”
But the most direct and pointed violation of the above rule is found in the following general instructions to the jury: a And if you find the further fact to be that the defendant got the plaintiff with child, that you may consider,
There is another thing that occurred on the trial of this case, though not properly matter of error, that ought to have some attention, and that is this: The plaintiff, on her examination in chief, testified that the defendant got hold of her twice without her consent, as she said she testified to before. On cross-examination she testified that the first instance of her sexual intercourse with the defendant was the result of force, and against her wall, or, in other words, rape. This did not- have, and could not have, any connection with the promise of marriage. Seduction is a different matter. This was proof of an independent crime of a very high degree, by the perpetration of which the plaintiff was greatly abused and injured. It is true that this evidence was not objected to by the learned counsel of the appellant. But we can readily conceive that such a brutal and shock
The learned counsel of the appellant ask this court to hold that the testimony of the plaintiff alone, in such a case, should be corroborated. This we cannot do, as the law now is. The plaintiff is a competent witness in her own behalf, and her interest in the event of the suit goes only to her credibility. There may be much force in the argument of the learned counsel, if addressed to the legislature. Before the statute allowed parties to testify in their own cases and in their own behalf, a charge like this had to be supported wholly by other testimony, and now a conviction of the crime of seduction under promise of marriage cannot be had if the testimony of the injured female is unsupported by other evidence. So long as the law remains as it is now, we have no right to say that her verdict cannot be supported by her testimony alone in such an action. It is the duty of the jury, however, in such a case,, in consideration of her interest, to weigh the testimony of the plaintiff without prejudice or partiality, and scrutinize
By the Court.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.