237 P. 791 | Cal. Ct. App. | 1925
Appeal by Cecelia Rodetsky from a judgment of the superior court of the state of California, in and for the city and county of San Francisco, made and entered in favor of T.A. Nerney, respondent herein.
The action was for damages for breach of promise to marry, with seduction alleged in aggravation of the damages. The case was tried before a jury. The verdict was for respondent. A motion by appellant for a new trial was denied and she appeals from the judgment.
[1] The appellant complains of certain rulings of the trial court in permitting respondent, whose character had not been attacked, to introduce evidence tending to show that his reputation for chastity and morality was good. This is the only point made by appellant as ground for reversal.
Decisions directly in point are few, and these from jurisdictions other than California. That the general rule is against the admissibility of such evidence unless the issue involves the character of the party is well settled (Vance v. *547 Richardson,
We are unable to perceive a distinction in principle between a charge of adultery in a civil case, which was held not to involve the character of a party, and a charge of seduction, which is contended here to have that effect. Both involve similar acts and are reflected in reputation at least in an equal degree; but if the charge of adultery in a civil action does not involve character in the sense that the word is used in section 2053, it cannot reasonably be said that the charge of seduction in such an action does so.
It is our conclusion that the character of respondent was not put in issue by the allegations of the complaint, and that the evidence was not admissible.
It is contended by respondent that, assuming the admitted evidence to have been improper, it but supported the presumption that respondent's conduct was in accordance with the rules of morality (Glos v. McBride,
[2] It is not within our province nor can we from the record weigh the testimony or determine the credibility of witnesses, we not having before us all the facts which appeared to the jury, many of which, due to their nature, cannot be recorded; but we are required to do so to the extent possible (Hirshfield v.Dana,
Respondent denied the alleged offer of marriage and the acts of intercourse; admitted his acquaintance with appellant and various visits to her home and that he accompanied her to places of amusement, and further testified that on his last visit to her house during the month of November, 1921, in response to a call from her by telephone, appellant requested of respondent the sum of $500 — whether as a loan or a gift the record does not show — stating to him, "You are a big man and got a lot of money," and "You come to see me and I could make you much trouble"; that thereupon respondent departed and their relations ceased. This testimony as to the conversation on the last day mentioned was not denied by appellant.
From the nature of the testimony of appellant and her son and from the uncontroverted testimony of the respondent last set forth it is our opinion that a jury might fairly and *550 reasonably have concluded that the allegations of the complaint were untrue; and it is our conclusion that, conceding that the admission of the evidence of character was error, such error was not, in view of the evidence as a whole, prejudicial to a degree which would justify the opinion that it resulted in a miscarriage of justice.
It is therefore ordered that the judgment be affirmed.
Knight, J., and Tyler, P.J., concurred.
Appellant's 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 July 6, 1925.
All the Justices present concurred.