163 Iowa 146 | Iowa | 1913
The defendant began paying attentions to plaintiff in 1901, and continued so to do until some time in 1909. The petition alleged that they became engaged to marry in October, 1904; that later he seduced her, and when she became pregnant advised and caused an abortion to be commit
Plaintiff sought, an interview with Simon Casady and J. N. Casady, they being officers of the bank in which defendant works, and at her solicitation at that time an interview was granted, and that the object of that interview was the discussion of matters between her and Mr. Glynn connected with this case, and that she in that interview some time in the month of June, I think the 22d of June, 1911, stated to the two Casadys that she thought the trouble with Glynn was the
"We think the inquiries in view of the explanation fairly , within the range of proper cross-examination. The evidence sought to be elicited would have tended to show? the animus actuating her in the action and have 'borne more or less directly on her credibility as a witness. As the trial court exercises a large discretion in fixing the limit of cross-examination tending to disclose motive or interest, we might not have been inclined to reverse on this ruling; but, as the matter concerned the relations of the parties to the action, we think the evidence, if offered on another trial, should be received.
III". The plaintiff testified that in April, 1907, Dr. Sherman gave her a paper of tablets, known in the record as Exhibit W. W., to be dissolved in water and used as a douche. The doctor denied having given her these in 1907, or to have given her the directions she had testified to, but stated that he gave them or similar ones to her in 1905, and on objection was not permitted to testify for what purpose they were then given, or whether they were to be used following an abortion. Assuming that he would have testified most favorably to defendant, he must have related a transaction which could have had no connection whatever with that of which she had spoken. Undoubtedly in testifying to receiving the tablets in April, 1907, and their purpose, she waived the right to insist on the protection of the statute excluding the physician’s testimony concerning the same (Woods v. Incorporated Town of Lisbon, supra), but only as to matters concerning which she spoke. What the doctor may have done two years previous she did not alltide to, and as to that his lips were sealed. The rule is said in 4 Wigmore on Evidence, section 2388, to be that: “A waiver is to be predicated not only when the conduct indicates a plain intention to abandon the privilege, but also when the conduct, though not evincing that intention, places the claimant in such a position with reference to the evidence that it would be unfair and inconsistent to permit the retention of the privilege. It is not to be both a sword and a shield. ’ ’
For this reason, doubtless, the testimony of the doctor denying that he gave her the tablets in 1907, and stating that
But in the eighth instruction the court told the jury that, in determining whether there was an agreement to marry, they might consider, among other things, “how the immediate relatives and friends of their respective families understood their relation toward each other.” We have discovered no authority holding that proof of the understanding in the family of either party may be considered as evidence of an agreement to marry. Certainly Thurston v. Cavenor, supra, should not be construed as so holding. The point discussed was whether a modification concerning an admission by plaintiff should have been inserted in an instruction. That in the excerpt therefrom quoted above it was not intended to say the contract might be shown by the understanding of friends or relatives appears from the inapplicability of the citations following. In Daniel v. Bowles, 2 C. & P. 553, the evidence was of a conversation by defendant with the mother of plaintiff at one time and with the mother and daughter at another, and nothing will be found in Chitty on Contracts or Blackstone’s Commentaries bearing on the question as to whether the understanding of the respective families may be proven. Even if what is said in Thurston v. Cavenor could be construed as so holding, it is mere dictum. To receive .such evidence as tending to prove a contract would be going farther than admitting hearsay — it would be receiving testimony of a conclusion based on hearsay. The members of the family may have reached their understanding from what plaintiff had said in the absence of defendant, or have inferred as much from the long-continued attentions of defendant. And yet such attention, however long-continued, if without a proposal or promise of marriage, would not justify such a conclusion.
‘ ‘ The ordinary politeness and civility which a gentleman extends to a lady are not to be considered as furnishing any proof of such a promise. The safest rule which we can lay down is this: If you find that the attentions which the defendant paid the plaintiff, and the intercourse between them, were such as were usual with persons engaged to be married, and such' as are unusual with persons between whom there exists no such relation, they are competent for you to consider as evidence which may or may not, as you may determine, suffice to prove a promise of marriage. It is not necessary for you to consider that there was an express promise made and accepted in terms; but if his conduct was such as to induce her to believe that he intended to marry her, and she acted upon that belief, the defendant permitting her to go on trusting that he would carry the intention into effect, that will raise a promise upon which she may recover. But this must be shown by facts and circumstances, and you cannot consider the understanding of the friends of the parties as to relation between them.” Perkins v. Hersey, 1 R. I. 493. See, also, Kelley v. Highfield, 15 Or. 277 (14 Pac. 744); Clark v. Hodges, 65 Vt. 273 (26 Atl. 726); Rutter v. Collins, 96 Mich. 510 (56 N. W. 93); Peppinger v. Low, 6 N. J. Law, 384.
In Leckey v. Bloser, 24 Pa. 401, the ruling by which several witnesses were allowed to testify from the conduct of the parties whether a mutual attachment in their opinion existed, or only the relation of ordinary acquaintances and friends, was denounced as erroneous, saying: “On such a
Y. The court, in the ninth paragraph of the charge, said to the jury:
If you find from a preponderance of the testimony as hereinbefore defined to you that such marriage contract was entered into substantially as charged in plaintiff’s petition, and that plaintiff is entitled to a recovery in this ease, under these instructions, then it will be proper for you in estimating or determining the amount of her recovery to take into consideration her wounded feelings, humiliation, her loss of social standing, the amount and value of the defendant's property,
And if you shall further find from the preponderance of the testimony that while the marriage contract was in existence and by reason thereof the defendant seduced the plaintiff; had sexual intercourse with her, and that he advised or procured an abortion to be performed upon her, then and in such ease you will be entitled to consider, in estimating the amount of such recovery, her .pain and suffering occasioned thereby, her mental anguish, humiliation, and shame, injury to health, if any has been shown, and any other injury that she sustained by reason thereof, as'the same has developed upon the trial hereof.
If you should fail to find that plaintiff has established by a preponderance of the testimony that during the existence of the marriage contract and by reason thereof the defendant seduced the plaintiff, had sexual intercourse with her, and that an abortion or miscarriage was produced with the advice of the defendant, then you will not be entitled to consider such facts in estimating the amount of plaintiff’s recovery, even though you find her entitled to recover.
Because of the lack of causal connection, the fact that a miscarriage occurred or an abortion was committed may not be considered in aggravation of damages in an action- for breach of promise. True, abortion may be shown in actions by the father for loss of services resulting from the seduction of a daughter; but-such an action cannot be maintained unless
But the perpetration of this offense, that is, of abortion, was as likely had there been no engagement, and if it occurred as an inducement to defendant to adhere to his agreement, as, some of the evidence tended to show, this was inconsistent with an inference that it was owing to a breach thereof. Moreover, according to the evidence, the abortion was committed long before the engagement was broken. The commission of an abortion is not the natural consequence of the breaking of an engagement to marry, and the evidence adduced did not tend to establish any causal connection between the two.
In Giese v. Shultz, 53 Wis. 462 (10 N. W. 598), the jury was directed that, “if . . . you should find that the defendant seduced the plaintiff under a promise of marriage, and got her with child, you will, in addition to the damages I have named, take into account this fact, and give such damages as she has sustained by reason of that additional injury,” and the court in adjudging this erroneous, said:
Other elements of injury, such as loss of time, expenses of medical and other attendance, and the like, might be held proximate, and might therefore increase the damages, in an action of trespass per quod servitium amisit, in which the seduction of the servant is proved in aggravation of the damages. In that form of action the loss of service caused by the seduction is the primary cause of action, and, of course, such
On another trial practically the same instruction was given, and from the second opinion, found in 65 Wis. 487 (27 N. W. 353), it appears there was a miscarriage, and the court held this improper for the consideration of the jury.
Schmidt v. Durnham, 46 Minn. 227 (49 N. W. 126), is not necessarily inconsistent therewith. In so far as the conversation of these parties concerning the commission of an abortion was connected with the promise of marriage or its performance, evidence thereof undoubtedly was admissible; but whether the crime was in fact perpetrated had no bearing on the issue, and neither the crime, if such there were, nor the suffering occasioned thereby was a consequence flowing from the breach of promise alleged. But see section 985, Sutherland on Damages.
5. SAME : seduction: pleadings : damages : instruction. As the petition was in one count, the court might well have construed it to claim such damages only as resulted from the breach of the contract to marry, and have treated the allegations concerning seduction and prcgnaney as in aggravation of the damages consequent of the breach. Geiger v. Payne, 102 Iowa, 581. But in receiving evidence, and in giving this and other instructions, the court must have construed the petition as stating two causes of action, that of seduction, and breach of promise to marry. In actions for seduction, all the natural consequences, such as pregnancy, childbirth, sickness; and' like matters, including abortion at the instance of the defend
Undoubtedly both causes of action could have been prosecuted in one action, for, under section 3470 of the Code, an unmarried woman may prosecute an action for her own seduction, and section 3545 of the Code provides that: “Causes of action of whatever kind where each may be prosecuted by the same kind of proceedings, if held by the same party, and against the same party, in the same rights, and if action on all may be brought and tried in that county, may be joined in the same petition.” See Turner v. Bank, 26 Iowa, 562; Devin v. Walsh, 108 Iowa, 428. Of course, each cause of action should have been stated in separate counts; but no objection was raised on this ground, though the circumstance that the facts which might have been pleaded in aggravation were included in the count alleging the breach strongly tended to define a purpose not to assert another cause of action. As the court seems to have ruled that both causes of action were alleged in the petition, and no prejudice resulted, we are not inclined to denounce the instruction as containing reversible error.
Because of the errors pointed out, the judgment is Reversed.