194 A.D. 126 | N.Y. App. Div. | 1920
The plaintiff sues for damages for breach of promise of marriage. The action was commenced on January 20, 1919, and the complaint charges that at various times between May, 1909, and* October, 1917, the plaintiff at the request of defendant promised to- marry him and defendant promised to marry plaintiff at a time thereafter to be agreed upon and within a reasonable time; that by means of such promises so secured from plaintiff the defendant seduced and debauched plaintiff, that he has refused to marry her, and has married another woman. The defendant’s answer was a general denial and as a separate defense he alleged that on October 30, 1917, subsequent to the dates mentioned in the complaint, the plaintiff accepted $500 in full satisfaction of any and all claims which she might have against defendant and executed and delivered to him a general release, a copy of which, apparently duly executed under seal and acknowledged before a commissioner of deeds, is attached to the answer. The plaintiff served no reply and the issues came on for trial. The jury returned a verdict for $25,000 damages, and defendant appeals. The only points presented by appellant relate to alleged errors in the admission and exclusion of evidence to which exception was duly taken.
I. The appellant insists that the learned trial judge erred in excluding evidence of his negotiations with the plaintiff and conversations had with her immediately preceding the execution of the general release pleaded in the answer as a. separate defense.
The defendant testified that immediately before the release was signed he met the plaintiff at a restaurant in Brooklyn. There were present the plaintiff, a woman friend of the plaintiff, a man with whom it is claimed plaintiff had become intimate without defendant’s knowledge, and another man, a friend or relative of plaintiff’s new acquaintance. The woman friend was allowed to testify that at this conference the defendant offered to give plaintiff $500 in settlement, and that
II. The appellant insists that the learned trial justice erred in excluding evidence of plaintiff’s declarations that prior to her meeting defendant she had been gmlty of the crime of abortion.
The complaint contains no allegation that at the earliest date of the alleged promise plaintiff was a virgin or chaste in character. But" upon her direct examination the plaintiff, having testified to the alleged seduction and sexual intercourse, was asked by her counsel: “ Q. And up to that time had you been a perfectly virtuous girl? A. Yes. Q. Never
In various ways the defendant sought to introduce evidence as to the fife of the plaintiff previous to his meeting her, and as to her conduct with another man during the time she was living with him. The defendant denied the promise to marry and his evidence was that their relations were at all times meretricious, and he endeavored to prove his alleged reasons for breaking with the plaintiff. The learned trial judge refused to permit any evidence, as he said, “ along these lines,” for the reason that defendant had not pleaded the facts in mitigation. The plaintiff having testified that at the time she met defendant she was a pure girl living with her sister, there was evidence from a woman who introduced the parties, called as a witness by defendant, which raised a serious issue as to plaintiff’s character before she met the defendant, and the plaintiff called in rebuttal did not deny the statements of her former friend.
Defendant, examined as a witness on his own behalf, was not permitted to give any evidence as to plaintiff’s statements or admissions to him concerning her past life, or as to her relations with men other than himself. The attitude of the learned trial judge in excluding such evidence was so marked that the witness, hesitating to answer a question asked by his counsel, saying: “ I think I will go against his Honor’s ruling,” was reassured by the trial judge, who told him he was not displeasing him, and the court said: “ Could you state it and eliminate the objectionable features? A. I will, your Honor.” But upon defendant’s counsel calling attention to the fact that this put upon the defendant the decision of what features were objectionable, the court, conceding that this
In charging the jury the learned court told them that if they found for the plaintiff they might award punitive damages as smart money to punish him for his acts.
The plaintiff having voluntarily introduced evidence of her purity and chastity previous to her meeting defendant, I think the defendant should have been permitted to negative her testimony by evidence that she admitted that she was not pure and chaste when she met him and in fact had an abortion performed upon her before that time. When she voluntarily introduced the issue as to her faithfulness to the defendant during the. continuance of their relations, I think she opened the door and the defendant should have been permitted to prove her admissions to the contrary.
If the plaintiff proved the breach of promise and seduction she was entitled to recover her actual compensatory damages. There can be no mitigation of actual damage. (Osterheld v. Star Co., 146 App. Div. 388; Wuensch v. Morning Journal Assn., 4 id. 115; Young v. Fox, 26 id. 261, 271.) The jury might go beyond compensatory damages, as they were instructed, and award punitive damages, and defendant might show any legitimate or relevant fact in mitigation, provided he pleaded such fact in mitigation. The learned court instructed the jury that in awarding actual compensatory damages they might consider the indignity and mortification to plaintiff’s feelings and pride as well as the blow to her affections. But where the plaintiff for the purpose of enhancing such actual compensatory damages voluntarily introduces an issue not raised by the pleadings, and testifies that she was pure and chaste when she met the defendant, it would seem to be a denial of justice to prevent the defendant from proving statements made by her to the contrary. If she lacked the sensibilities of a pure and upright person, such a person necessarily suffers less in mind than those who possess such qualities. When she saw fit upon the witness stand to go beyond her pleading and to voluntarily describe herself to the jury as a virtuous, pure woman, seduced and debauched by the defend
III. The appellant complains that the trial judge admitted evidence that during the time she lived with defendant she had eight separate abortions at defendant’s request, each operation being attended with great pain.
Plaintiff’s counsel asserted that this was one of the elements of damage. The evidence was admitted over defendant’s exception. Nothing was said in the complaint concerning abortions. I doubt the admissibility of the evidence. Commission of a felony can hardly be said to be the natural result of the injury alleged in the complaint. (Keefe v. Lee, 197 N. Y. 68.) And in addition the court over defendant’s objections and exceptions allowed the plaintiff to testify that during the time she lived with defendant she told him she was very fond of children and asked him “if it would not be all right to let one of these operations — never mind one of these operations; to go on with it ” so that she might have a child. And the court asking, “ Q. What did he say to that? A. He said, ‘No, go and have an operation performed. We don’t want to have any children.’ ” By plaintiff’s counsel: “Q. Were you willing to bear him children? A. Yes, sir.” The learned court told the jury that in determining the amount to be awarded as actual damages they might consider “ all the disappointments that came to her from the failure of marriage, as well as the blow to her affections.” Aside from the fact that a desire on the part of a woman for illegitimate children is somewhat unusual, the admission of this evidence introduced a highly speculative element of damage. “ It permitted'the
Because of the errors in the rulings referred to, I recommend that the judgment be reversed and a new trial granted.
Jenks, P. J., Rich, Putnam and Blackmar, JJ., concur.
Judgment and order reversed and new trial granted, with costs to abide the event.