89 P. 441 | Cal. Ct. App. | 1907
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *762 This is an action for damages for breach of promise of marriage. The case was tried by jury, the plaintiff obtained a verdict for the sum of $8,000, and thereupon the court caused judgment to be entered in her favor in the amount found by the jury. Defendant appeals from the judgment and an order denying his motion for a new trial.
The complaint, after alleging that both plaintiff and defendant are unmarried, their mutual agreement and promise to marry, the violation and breach by defendant of such agreement and promise, and other facts sufficiently well pleaded to render the complaint immune from successful attack by a general demurrer, proceeds in paragraph 6 thereof: "After said promise to marry was made by defendant, as aforesaid, he seduced and had sexual intercourse with plaintiff. Said seduction and sexual intercourse were brought about and accomplished by means of said promise previously made, through defendant's persuasions and importunities, and by reason of plaintiff's reliance upon the good faith of defendant, in making said promise, and her belief that defendant intended to and would marry her, in pursuance of his said promise."
Further, in paragraph 8 it is averred: "By reason of defendant's breach of his said promise to marry plaintiff, and her seduction by defendant, plaintiff became greatly distressed in mind and body, suffered humiliation and disgrace, and will suffer humiliation and disgrace the remainder of her life, became and is now sick and will remain sick for a long time to come, all to her damage in the sum of twenty-five thousand ($25,000) dollars." *763
The defendant demurred specifically and generally to the complaint, the demurrer was overruled by the court, and thereafter an answer was filed, specifically denying all the material averments of the complaint. Appellant has specified a number of errors (in addition to that claimed in the order of the court overruling the demurrer), involving rulings of the court, insufficiency of the evidence to sustain the verdict, or what is tantamount thereto, excessive damages under the evidence as presented by the record, and instructions given and refused. We will take up the points in the order in which they are presented.
Undoubtedly, the theory upon which counsel for respondent drafted the complaint in this action, and, manifestly, the one upon which it was tried by the court below, was that for the breach of a marriage contract, with averments of seduction for the purposes merely of enhancement or aggravation of damages. But appellant contends that the demurrer to the complaint should have been sustained, because there is contained therein a misjoinder of causes of action, in that an action excontractu has been improperly united with an action ex delicto, claiming that if respondent intended to rely upon her action upon contract, with allegations of seduction only in aggravation of damages, she has failed to accomplish her purpose, because it appears from the complaint itself that the character and manner of the averments of seduction necessarily involve the statement of a substantive cause of action in tort, independent of and distinct from that of contract, upon which she declares in the first count of her pleading. Appellant also contends that, assuming the complaint is not obnoxious to the criticism thus made, and that seduction is therefore well pleaded for the purpose of enhancement of damages, he was nevertheless entitled to the ruling on his demurrer, inasmuch as plaintiff is given, by the express terms of the statute (Code Civ. Proc., sec. 374), a right of action for her own seduction. This claim has its inspiration in the reasoning of some of the cases cited by appellant, to be hereafter noticed. And it is further claimed that, if she be permitted in her action for breach of promise of marriage to allege seduction in aggravation of damages, she is thereby allowed to do indirectly what the law does not permit to be directly done, that is, uniting an action upon contract with an action upon tort. But a much more serious result which is *764 seen by appellant in pleading seduction in aggravation of damages in an action upon a breach of promise of marriage, is that, if she should in such a case obtain judgment, she could still prosecute and maintain her action for seduction, because the judgment in the former, treated, properly of course, as an action upon contract, could not be set up in bar of the latter.
We have not been able to find nor have counsel in their briefs cited us to, any California cases which discuss and adjudicate the precise questions thus presented by the demurrer. An instruction to the jury, in Moore v. Hopkins,
The crux of the whole matter, as appellant views it, seems to be in paragraph 8, and it is charged that therein are contained "substantive averments of the ground of damages resulting from seduction." Is this true? After alleging mutual promises to marry, refusal on part of defendant, etc., appellant is alleged in paragraph 6 to have succeeded in seducing and having sexual intercourse with plaintiff (we construe the allegation in our own language) through and by reason and as the result of said "promise previously made," and that the same were "brought about and accomplished" how? In the language of the paragraph in question, "by means of said promise previously made, through defendant's persuasions and importunities (founded on the promise of marriage), and by reason of plaintiff's relianceupon the good faith of defendant, in making said promise and *765 her belief that defendant intended to and would marry her inpursuance of his said promise." There can be nothing clearer than that paragraph 6 intends to and does allege seduction only in enhancement of damages. And we do not think that an analysis of paragraph 8, keeping in view the averments of paragraph 6, will justify the criticism to which it is subjected by appellant. It, in reasonably clear language, states facts which describe the effect upon plaintiff, resulting from the breach of the promise and the seduction accomplished by means of such promise — facts, it may be said, which common experience teaches would ordinarily be the consequence of such conduct. It merely charges, to paraphrase the paragraph, "that because of the violation of the contract heretofore alleged, and because of the seduction of plaintiff, as the result of the alleged broken contract," plaintiff became greatly distressed in mind and body and became sick, etc. Strike out the allegation of seduction, and still the language of the paragraph that she became "greatly distressed in mind and body and became sick, suffered humiliation and disgrace," etc., could not necessarily be inappropriate nor without truth, because it would be by no means unnatural that such consequences would flow from the violation of a marriage contract, unintensified by the fact of seduction. The act of seduction alleged against appellant is charged to have grown out of and been the direct result of his promise to marry, and it is reasonably certain from the averments of the complaint that seduction would not have occurred but for the previous promise of marriage. We can perceive no analogy between this case and Lamb v. Harbaugh,
In the trial of the case at bar, as suggested at the outset of this discussion, the case was treated by the lower court upon the theory that it was an action for a breach of promise, under circumstances of such aggravation as to entitle plaintiff to exemplary damages, and the instructions to the jury upon the question of seduction were given upon the hypothesis that the evidence thereon was to be limited and confined to a consideration and determination of the question of exemplary damages alone.
The other points urged under the demurrer, that the allegation of seduction in enhancement of damages is not permissible for the reason plaintiff has her right of action for seduction for such injury, and that a judgment secured in a case of breach of promise, with seduction averred in aggravation, could not be offered in bar of an action for seduction, are, we believe to be, under the authorities, equally as untenable as the first. Some early cases have appeared to hold a different view from that entertained by us on this question, but we believe the weight of authority and the best reasoned cases sustain our position. It would indeed be a singularly unreasonable rule in pleading and practice which would prevent full disclosure of all the facts necessarily growing out of and connected with the breach of a contract of the nature of the one under consideration which would show or tend to show the extent of the injury to the complaining party by reason of the violation of the terms of the agreement. We do not assail the position of the supreme court of Indiana, in Felger v. Etzell,
In King v. Kersey,
But even in that case the court declines to decide whether or not in an action for violation of a marriage contract seduction can be alleged and proved. It says: "All that we need decide, and all that we do decide is, that under a complaint, in such case, which contains no allegation of seduction, evidence of that fact cannot be admitted to enhance the damages."
Perkins v. Hersey,
Conn v. Wilson, 2 Over. (Tenn.) 234, [5 Am. Dec. 663], is to the same effect, as are also Weaver v. Bachert, 2 Pa. St. 80, [44 Am. Dec. 159], and Gring v. Lerch, 112 Pa. St. 244, [56 Am. Rep. 314, 3 A. 843]. The case of Gillet v. Mead, 7 Wend. (N.Y.) 193, [2 Am. Dec. 578], also cited by appellant, is not in point. That was an action for seduction, for debauching plaintiff's servant, for damages for loss of service. Evidence was admitted of defendant's promise of marriage to her previous to having carnal knowledge of her. The master (plaintiff) was in no way interested in any contract between the female and the defendant. His injury, which rested alone in tort, consisted in the loss of service of the female. He was not and could not be injured in any manner or degree by a breach of the contract of marriage, if any existed. Hence, averments and evidence thereof were immaterial.
Judge Parsons, in his work on Contracts, second volume, page 71, ninth edition, seems to be of opinion that exemplary damages for seduction are not recoverable in an action for breach of promise, and adds, "that by strict rules of law should, we think, be excluded, where the plaintiff was in actual or constructive service, or lived in a state in whichthe statute law gave her an action for the seduction, and nototherwise."
The case of Felger v. Etzell,
We have examined all the cases cited by appellant bearing upon the point under discussion, and, while some of them seem to sustain his views, we yet feel sure of our position that it is not well taken. If it be admitted that the cases reported in 48 and 75 Indiana support the contention of appellant (and we do not concede that they clearly and explicitly do so), then the rule therein enunciated has been subsequently changed and reversed, not only by the supreme court of Indiana but by all the courts of last resort where the precise question has been presented. And we think, as we have before asserted, that the reasoning in the cases cited by respondent upon the point is by far and infinitely stronger and more conformable to principle than that which leads to the other conclusion.
In the case of Haymond v. Saucer,
In Spellings v. Parks, 104 Tenn, 351, [58 S.W. 126], upholding the ruling denying the demurrer to a complaint in a suit for breach of promise and seduction, the court said: "This is not error. The seduction is merely alleged in aggravation of damages, and it has been held in a number of our cases that in an action for breach of a marriage contract the plaintiff may give in evidence, in aggravation of damages, that she was seduced by the defendant." In that state was also, when that case was decided, a law giving an unmarried female a right of action for her own seduction.
"It is well settled," says the court in Davis v. Pryor, 3 Ind. Ter. 396, [58 S.W. 660], (an Indian territory case), "that evidence of seduction is admissible in aggravation of damages," in an action for breach of a marriage contract.
In Poehlman v. Kertz,
The Oregon statutes allow an action for seduction by an unmarried female over the age of twenty-one years. (General Laws of Oregon, sec. 35.) In the Oregon case cited (Osmun v. Winters, supra), the court said that: "The common-law practice is substantially uniform in admitting such evidence (of seduction in enhancement of damages), and is, we think, based upon sound principles."
In Sheehan v. Barry,
There are many other cases which are in line with those from which we have quoted. We have examined them with care, and find that they clearly and by unimpeachable reasoning sustain the contention of respondent that under our system it is permissible to plead seduction in aggravation of damages in an action for the violation of a marriage contract. We will not take the time to present excerpts from all those decisions, for we think it sufficient to say, finally, that from our investigations of the questions discussed we feel persuaded of the soundness of the rule contended for by respondent, and are further convinced that a recovery in an action for breach of promise where seduction is alleged in enhancement of damages would, if pleaded, be a bar to an action for seduction founded upon the same facts set up in the former suit.
It is urged that the damages awarded to the plaintiff are excessive, and that for this reason the verdict should be set aside. The rule in this state is so well settled by judicial decision that it has become elementary, that the appellate courts will "not interfere in such cases unless the amount awarded is so grossly excessive as to shock the moral sense and raise a reasonable presumption that the jury" in the rendition of its verdict was actuated and influenced by passion or prejudice. (Marshall v. Taylor,
In Lee v. Southern Pacific R. R. Co.,
But in the case at bar it is argued that because the principal testimony in the cause on behalf of plaintiff was that given by plaintiff herself and that the same was "squarely contradicted" by that of the defendant, and because, further, the defendant's physician gave testimony tending to show impotency in the defendant and his consequent incapacity to perform the act of sexual intercourse, it is the duty of this court to set aside the verdict. This we cannot do. There is no rule more firmly settled or better understood than the one which removes from within the practice of appellate courts the duty of weighing the testimony or of settling and reconciling discrepancies in the testimony. This duty, under our system, is, happily, committed to the jury who see and hear the witnesses, and who, having thus heard the evidence, must weigh it by the light of all the tests afforded by legal rules, and finally determine the truth concerning the questions in dispute. And when they have thus reached a conclusion in cases upon evidence in which there appears a substantial conflict, their findings are conclusive upon us, and cannot be disturbed. But do the facts disclosed by the evidence justify the contention of counsel that the verdict is excessive? The rule that the pecuniary condition of the defendant may be considered in determining this question is conceded. According to his own testimony, the defendant owned, at the time he is alleged to have agreed to marry plaintiff, money and real property of the aggregate value of $14,009.83. To this amount, it is contended by plaintiff, should be added the sum of $2,500 which defendant claimed to have paid to his nephew. This would bring the extent of his wealth, measured in money, up to a total of $16,509.83. It is insisted that the amount of the verdict, when compared to the total value of defendant's possessions, is so excessive as to warrant us in declaring or indulging the presumption that it was brought about by passion or prejudice. We think that, under all the circumstances of the case, as found by the jury, the verdict is not excessive in any view of the case, even if the item of $2,500 mentioned is not to be computed in estimating the value of his estate. The injury inflicted upon the plaintiff by the conduct of the defendant is irreparable. The acts superinducing that injury were incomparably reprehensible. We must believe the facts as the jury found them, and, so believing, we do not hesitate to say that there is even no act *774 denounced as criminal of which the meanest of the human family is capable so diabolical and dastardly as the impulse which prompts any man, old or young, in the full possession of his intellectual faculties, to wantonly and ruthlessly rob, by means as false as they were ignominious, a young and inexperienced maiden, without the protecting care and cautious solicitude of a father, and, still worse, the daughter of a lifelong friend, between whom and his family the most cordial and intimate social relations had existed, of the richest and most cherished of the traits which go to form human character. Mercilessly thrown out into the world, so to speak, rejected by the man who deliberately and by false pretenses betrayed her, and, thus dismantled of the priceless armor of virtue and honor, and exposed to the scorn and contumely of her friends and acquaintances, and, it may even be added, to relentless humanity, in general, is it possible that money damages can repair, in any degree, so grievous an injury? We think the verdict is not excessive. The defendant, advanced in years and to a point in life where the probability of his living much longer does not exist, with no one dependent upon him for sustenance and support, is still left with a competence upon which he can subsist by the practice of ordinary habits of frugality. If, under these circumstances, he cannot do this, then, in the absence of other features of the record than those urged justifying us in declaring the verdict to be excessive, we must leave him to reap the fruits of his own folly and perfidy.
The rule that appellate courts will not disturb the verdict where there is a substantial conflict in the evidence renders it unnecessary for us to take up a detailed discussion of the testimony in this case; yet there can be no impropriety in saying that the record shows much more evidence than merely the testimony of the plaintiff and the "flat contradiction" (as it is put by appellant) of the same by the defendant, as is contended. Indeed, there are many circumstances testified to by the mother and sister of the plaintiff which tend strongly to corroborate the story of the plaintiff. The cross-examination of the defendant revealed weaknesses in his statement, and it may be added that if we felt called upon to search for reasons why the jury discredited the testimony of defendant, we need go no farther than that portion of his testimony in which he declared that he had sold *775 a piece of his realty for $2,500 and had paid the money to his nephew to liquidate, as he termed it, "a debt of honor." He said that this relative had told him in the lifetime of his wife that the latter had borrowed from him certain sums of money, the exact amount of which he never apprised defendant of. He said that he had never mentioned the matter to his wife, and, when pressed for an answer as to how much the "debt of honor" amounted to, he replied that he did not know how much it was, whether it was ten dollars or a thousand dollars — but that all that he did know about it was what his nephew had told him. So improbable a story, coming from a man whose intelligence is not impeached, could not be believed even by the most credulous.
Certain rulings of the court are complained of. The mother of plaintiff was asked on her direct examination, "What is your daughter doing?" — referring to the time just previous to and about the date of the trial. She replied, "She is wet nursing." This question was objected to. The plaintiff had previously been asked a similar question and returned a similar reply. If there was error in overruling the objection (and we do not decide that there was), the reply of the witness was harmless. The plaintiff was asked, "State, Miss Lanigan, the names of any of your relatives, if there be any, who knew of the birth of this child." Objection to this question was overruled and she replied: "My mother and sister. I haven't seen any of my other relations. I don't know whether they know it or not." In Reed
v. Clark,
Before the trial, the deposition of the defendant was taken at the office of the attorneys for the respondent. The deposition was transcribed, but was not read to the witness and corrected and subscribed by him, required as a prerequisite to its use as a deposition by section
The defendant, according to the testimony of plaintiff, when the latter informed him of her condition, advised her to consult a doctor, and gave her a small sum of money with which to pay the fee. He requested her to write to him from her home in San Francisco the result of the examination by the doctor. In accordance with this arrangement, the plaintiff consulted a physician and was told by him that she was in a delicate condition. She thereupon addressed a letter to the defendant imparting to him this information. No reply was made to the letter. Upon cross-examination he was asked if he had received such letter, and was required, against the objection of his counsel, to answer the question. It is claimed that this was not proper cross-examination. We do not think the court erred in its ruling. The defendant had in his direct testimony made denial of a promise to marry plaintiff, denied having been sexually intimate with her, denied having given her money for the purpose of paying the doctor, and, in short, denied in toto
all the inculpatory statements against him testified to by plaintiff. The question was in principle the same as if he had been asked if he had not been personally accused by plaintiff of the paternity of the child and had made no reply to the accusation. The plaintiff testified that the letter not only conveyed to defendant the information concerning her condition, as the doctor had diagnosed it, but reminded defendant *778
"that he must now keep his promise (of marriage), as there was no time to lose." If the defendant received such a letter and remained silent under the charges which by inference it contained, then the fact of its receipt and his failure to reply might tend in a degree to contradict his denial of the promise of marriage and seduction, or at least discredit to some extent his testimony. "Great liberality should be allowed in the cross-examination of a witness, for the purpose of testing his accuracy and credibility; and where questions asked appear to relate to facts and circumstances within the general scope of the direct examination, it is error to exclude them." (People v. Westlake,
On direct examination Dr. Rowell, defendant's physician, was asked: "State whether or not the objective symptoms confirmed the subjective symptoms upon your examination in 1900." The court sustained an objection by plaintiff to this question. The ground of the objection, that it was irrelevant and incompetent, and not proper redirect examination, was perhaps not well taken, but the court refused to allow the question to be answered because it was a mere repetition of what the witness had already testified to. The witness on direct had fully explained, referring to defendant's alleged impotency, that in his examination of defendant the subjective and objective symptoms of such incapacity concurred; or, in other words, the physical condition of the defendant coincided with what the defendant had told him of his symptoms as they manifested themselves to him. There was no necessity of repeating the testimony, and, while no harm could have come from permitting the answer, we can perceive none in refusing it.
A number of witnesses were permitted to testify on the part of defendant as to his general reputation where he resided for chastity and morality. The witness, Schmidt, in addition to the question propounded as to his knowledge of defendant's general reputation for the traits mentioned, was *779 also asked, having said that he knew the general reputation of defendant for integrity, whether it was good or bad. To this question the court sustained an objection. Counsel for appellant insists that the ruling was error because the word "integrity" means, among other significations, "moral soundness," which, he says, is a trait involved in the charge of seduction. Schmidt had already testified, without objection, as had several other witnesses, that defendant's reputation for chastity and morality in the community in which he lived was good. Assuming the ruling to be error, which it is not necessary for us to decide here, we do not think it was prejudicial in view of the other evidence admitted directly bearing upon his reputation for chastity and morality.
The hypothetical question propounded to Dr. Fraser, called as an expert witness for the plaintiff, was within the evidence. The objection was that the question assumed facts not in proof. The defendant was called to the witness-stand by plaintiff in rebuttal and asked a number of questions, the answers to which involved information as to whether or not in his lifetime he had ever suffered from any disease of the genital organs or had in any manner abused himself so as to affect or impair the vitality of those organs. His replies to these questions were to the effect that he had never abused himself, had never had venereal trouble or blood disease of any character, except rheumatism, and had never found it necessary to use a catheter or other instrument to open the canal of his organ of generation in order to pass water. The hypothetical question embraced all these facts and was whether or not, "under such circumstances, and assuming them to be true, that man could perform the act of copulation?" The answer was: "He could, without doubt." There was no error in the ruling on this question.
It is charged that the attorney for plaintiff in the course of his argument to the jury was guilty of misconduct which prejudiced the rights of defendant. Counsel used this language: "We challenge counsel to deny that we offered to dismiss this suit, if the defendant would marry the plaintiff, and legitimize this child." There was no evidence offered or received which warranted the use of the quoted language. It seems to have been used in reply to certain comments made by counsel for defendant in his argument upon matters *780
foreign to the record. It would save much trouble and expense and serious disappointment to litigants if lawyers could practice and acquire an equanimity of temperament which would prevent the exhibition of the inordinate zeal during the trial of a case which often leads to prejudicial error. The language imputed to counsel, and which, in fact, he admits to have used, was wholly without warrant from the record, but we think the court's action in striking it out and immediately instructing the jury to disregard it, cured the irregularity. It is claimed, however, that the irregularity complained of is not properly before the court, because, under sections 657,
Objections to certain instructions given by the court involve the points we have discussed and disposed of against the contention of appellant raised on the court's order overruling the demurrer. It is insisted, however, that the court erred in refusing to give instructions 16 and 20, requested by defendant. We have carefully examined the instructions given by the court and think the law of the case was fully covered by them. Instructions 24, 25 and 28, which were read to the jury, embrace all the matters contained in the rejected instructions. This was sufficient. We know of no rule of law requiring the court to repeat its instructions upon any point in a case, where the law applicable thereto has already been given in clear and perspicuous language.
We have given the record careful consideration, and have not been able to find any errors prejudicial to the rights of the defendant.
The judgment and order are affirmed.
Burnett, J., and Chipman, P. J., concurred.
A petition for a rehearing of this cause was denied by the district court of appeal on March 7, 1907, and a petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 5, 1907.
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