Kammermeyer v. Hilz

107 Wis. 101 | Wis. | 1900

Baedeeit, J.

This case presents some very novel features. 'The complaint shows that it is a straight action at law for •money had and received. After the evidence was all in, the court conceived the idea that it was an action to enforce •a trust, and thereupon, against defendants’ objections, submitted special findings to the jury, and made findings of fact •and conclusions of law as in an ordinary equity suit. If the 'conclusion that this is an action to enforce a trust can be justified, still there was no warrant in our practice for turning the case into an equitable proceeding, against the defendants’ objection. The evidence introduced was proper, under the complaint, to establish the claim for money had •and received. Hence no question of waiver by failure to object thereto can be invoked. There are cases in which evidence has been received without objection which has virtually changed the action from law to equity, and the judgment has been sustained on the ground of waiver and failure of the party to make timely objection. This is not such a -case. But the fact of whether the court has or has not the power to make such transformation is not important in this case, because we are clearly of • the opinion that the view taken of it by the trial court was erroneous. The evidence fails entirely to disclose a trust, and hence the action of the ■court in parceling up the issue was distinctly prejudicial to the defendants, and the result is a mistrial. The status of the parties and their legal liability to each other was fixed, and must be determined, by the written contract, bond, and receipt executed when the transaction was closed. Prior to the alleged seduction the plaintiff had been a member of the defendants’ family, and had been recognized and treated as a daughter. Ho question seems to be raised but that the relation was sufficient to sustain a claim for the seduction. Under these circumstances, the father had a claim against Priest, which included loss of services of the plaintiff, she being under age; expense incurred by reason of the pregnancy and confinement, or other illness; the anxiety and suffering of mind caused by the loss of virtue of his daughter; the corrupting influence upon the morals of his other children; and the disgrace and dishonor to his family. 21 Am. & Eng. Enoy. of Law, 1031. In addition, under the terms of the settlement, the defendant Adam took upon himself the burden of bringing up, rearing, educating, and supporting the child, and agreed with Priest to save him harmless from all claims or demands in that regard. From the very nature of the situation, the amount of this burden was uncertain and unascertainable, and depended upon the contingency of the child living, its condition of health, and other circumstances as uncertain as life itself. As a part of the same settlement, the plaintiff released to Priest all claim or demand she had against him. As the father of the child,, Priest was bound to provide for its support and maintenance. The claim of the mother arose from the necessity of caring for the child, giving it motherly care, and looking after its comfort, and Priest was under a high moral obligation to make her future as easy in that regard as was consistent with his circumstances.

Sec. 1532, Stats. 1898, recognizes the right of the person accused of being the father of a bastard child to settle with the complaining female by paying or securing to be paid to her “ such sum of money or other property as she may agree to receive in full satisfaction ” of her wrongs. The accused is also required to enter into bonds to save the authorities harmless from all charges for the maintenance of the child, and for the lying-in and support and attendance of the mother during her sickness. Independent of the statute, the female had no cause of action against her seducer, but under it she was entitled to demand such sum as she might agree to receive in satisfaction of her wrongs. The settlement in this case included the father’s claim for seduction, the obligation- of the accused to support and maintain the child, and the mother’s claim for satisfaction, all bunched into one sum. The money was paid over to the father, and held by him. The receipt taken, which, by the way, must-be treated as a contract, recites that, in consideration of the sum of §3,000, the signers released Priest from all of the claims above mentioned, and which was to be in full satisfaction and release of all claims of either party upon him for the seduction, carnal -intercourse, loss of services, expenses, and support and education of the child. The receipt, however,- fails to designate how much of said sum was to be applied to the satisfaction of either of the claims mentioned. As her natural guardian, the father took the share given to the daughter. She was entitled to some share of' the money, and the purpose of this action was to ascertain how much that share was. An action of this kind has always been considered an action at law, but is maintainable on equitable principles. Western Ass. Co. v. Towle, 60 Wis. 247. The plaintiff was therefore entitled to recover such share of the money paid to her father as, under all the circumstances of the case, she was justly entitled to. It was-a question for the jury to determine, under proper instructions, and not for the court. The father had a right to retain all his damage for the seduction, including the elements, hereinbefore stated, of expense, loss of services, sense of shame and humiliation, and the like, and also such sum as-the jury might find the parties contemplated might be required -for the support and education of the child, had it. lived. The father entered into a contract and bond to take care of the child, and the fact that it died a few months-afterwards does not increase the amount the plaintiff is entitled. to. The mother is entitled to such portion of the money paid over as, in contemplation of the parties, was paid in satisfaction of Tier claim, and no more. There being nothing in the written contract of settlement to show the. share of each, evidence to show the entire situation was proper, in order to give- the jury some basis upon which to found a conclusion.

The evidence of Priest to the effect that the money was paid over for the benefit of the mother was improper, as varying the terms of the written contract of settlement. In ■the absence of fraud or mistake, that instrument must speak for itself. As indicated by the special verdict and the instructions of the court, the case was submitted to the jury upon an entirely different and erroneous theory.

It was claimed by defendants that, after the plaintiff had made a demand for a portion of this money, they paid to her the sum of $600 in satisfaction of her claim. A receipt was taken, which reads as follows:

“ Received from Adam and Catherine Hilz six hundred ■dollars, being in full payment of any claim which I have, or may have after their death, as heir.

“ Mbs. Katie KammebmeyeR.”

On its face it relates to an entirely different matter, and, •unless it was clearly shown that there was some mistake or fraud in the writing, it was conclusive on the parties. Brand v. James, 67 Wis. 541.

What has been said is deemed sufficient to indicate the plan that should be pursued upon a new trial.

By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.