135 Wis. 194 | Wis. | 1908
The following opinion was filed February 18, 1908:
Appellant’s most urgent contention is that the trial court erred in refusing to direct verdict for defendant, or to insert answers in the special verdict negativing the promise of marriage, and that he also erred in not setting aside the verdict as opposed by great weight and preponderance of evidence. The action of a trial court in the second respect is an exercise of discretion with which the appellate court will not interfere. Although convinced that some credible evidence supports the verdict, if the trial judge is persuaded that such evidence is relatively so weak or unconvincing, when compared with the adverse evidence, that there is danger that the verdict will work injustice, he is vested with a broad discretion to protect against such peril by granting the parties a new trial. Bannon v. Ins. Co. of N. A. 115 Wis. 250, 91 N. W. 666; Peat v. C., M. & St. P. R. Co. 128 Wis. 86, 107 N. W. 355. But when this stage has been passed, the question whether the court should direct a verdict, or whether this court on appeal may in effect do so, depends merely upon whether there is any credible evidence which, in the most favorable view and granting all reasonable inferences and construction in favor of the conclusion of the jury, tends to support the verdict. To declare sworn testimony of a fact incredible we must be convinced that it is so in conflict with the uniform course of nature or with fully established physical facts that no reasonably intelligent man could give it credence. Beyer v. St. Paul F. & M. Ins. Co. 112 Wis. 138, 88 N. W. 57; Hirte v. Eastern Wis. R. & L. Co. 127 Wis. 230, 106 N. W. 1068; Peak v. C., M. & St. P. R. Co. 128 Wis. 86, 107 N. W. 355. In this case the plaintiff testified positively to the fact of a promise of mar
We can discover nothing in the opinion of the trial court
Error is assigned with some confidence upon tbe contention that tbe agreement between plaintiff and her attorney was champertous. She bad apparently answered on her examination under sec. 4096 that she bad agreed to give him a certain proportion of tbe recovery and expected him to- pay tbe court costs. Tbe latter answer she attempted to correct before signing her deposition, and made explanation more or less satisfactory of misunderstanding such statement. Testimony was given by tbe attorney and others as to tbe exact terms of that agreement wbicb it was claimed was later reduced to writing,- and that it required plaintiff to pay costs and expenses ; also that she bad done so. Tbe whole evidence was before tbe court. His decision that the contract actually made was not champertous was fully borne out by at least some of tbe evidence, wbicb was, at most, thrown in conflict by plaintiff’s answer above stated. We cannot think that there was any clear preponderance against tbe decision of tbe trial court on what were tbe terms of that agreement. Lyttle v. Goldberg, 131 Wis. 613, 111 N. W. 718.
Several of tbe assignments of error present comparatively trivial grounds of complaint in wbicb we can discover no error prejudicial to tbe appellant. These include tbe refusal of plaintiff to sign her deposition at first; but she did sign it before trial and defendant made full use of it. Another is tbe exclusion of a question to tbe plaintiff on cross-examination whether she bad promised to give one Cbesebro a portion of her damages. While it might not have been error to admit this in the broad field of cross-examination, we discover no error in excluding it nor any prejudice to tbe defendant.
A large number of requests to instruct are called to our attention by tbe appellant’s brief, with tbe claim that their refusal is error. Many of them are directions to tbe jury to consider certain classes or items of evidence. Tbe omission to do this can hardly ever be reversible error. It is a field into which courts can seldom enter without causing dissatisfaction to one side or tbe other. A comment on one item of evidence frequently demands in immediate connection therewith reference to many other items in order that it may not
Certain instructions were requested to the general effect that if, from the conduct of the parties, the jury believed the contract of marriage to have been abandoned, they should answer “Ho” to' the fifth question, which inquired whether she had held herself ready and willing to marry the defendant, and the defendant assigns error upon their refusal and upon the refusal of the court to submit a question whether the contract had been abandoned or rescinded. Rescission or abandonment of this contract was not in the case. The answer was a mere general denial, and the defense of rescission or abandonment would have involved facts occurring after the making of the contract, and should have been pleaded in avoidance thereof. Bliss, Code PL (3d ed.) §§ 327, 352 ; McKyring v. Bull, 16 N. Y. 297; Schaus v. Manhattan G. L. Co. 14 Abb. Pr. n. s. 371.
It is further complained that the court framed his charge so that certain paragraphs thereof applied to several questions and were general. These paragraphs related to the burden of proof, the duty of the jury in weighing evidence and measuring the credibility of witnesses, the elements constituting a contract of marriage applicable to several questions and definitive of terms therein used. In this there is
We cannot think the contention that the damages are excessive worthy of extended consideration by the appellate court after adverse ruling below. Ten thousand dollars for the loss of a marriage to a man of the wealth which evidence at least tended to ascribe to the defendant, after an engagement of some four years, is well within the limits of verdicts which have been sustained. The translation into terms of money of those peculiarly indefinite damages which, result from a breach of such a contract is so a matter of estimate that courts on appeal are extremely reluctant to interfere with the conclusion of the jury thereon.
We have gone over all the assignments of error relating to those portions of the recovery other than for seduction, at least so far as seems to be justified by their importance, and’ find none which can in our opinion warrant any reversal up to the point of the recovery of damages for the breach of promise unaffected by consideration whether the seduction of the plaintiff was accomplished in reliance upon the promise of marriage. When the court came to the question of seduction he instructed the jury that if- they found it they should, in answer to the ninth question, fix such sum as will compensate her for the additional injuries resulting from the^eduction which would include loss of virtue, injury to reputation, and her mental suffering following from such loss and such injury, and this too after directing them to include, in response to the seventh question, the amount of her damages for the breach of the promise of marriage independent of seduction, the elements of which he described as “benefits and advantages lost to her by the defendant’s breach of the
“(1) The disappointment of the plaintiff’s reasonable expectations,” . . . including “the money value, or wordlv advantage, of a marriage which would have given her a permanent home and an advantageous establishment. (2) The wound and injury to her affections. (3) Whatever mortification or distress of mind she suffered, resulting from the refusal of the defendant to fulfil his promise.” ■ .
“The benefits and advantages lost to her by the defendant’s breach, of the contract, together with such sum as will compensate her for such humiliation and mental suffering as resulted to her from defendant’s rejection and repudiation of her.”
Now, under the rule of Giese v. Schultz, the utmost effect of her seduction would have been under this rule 'of the trial court to enhance the sum which the jury might have thought would compensate her for one or the other of these elements, and, obviously, it was not so limited by the instruction given, which authorized compensation for the “additional injury resulting from seduction.” That is in direct disregard of the rule of this court and must be considered error, the effect of which on the judgment, however,,, need not be considered by reason of a more radical objection now to be stated.
In the finding (No. 8) as to whether or not seduction had taken place the court left to the jury whether the plaintiff had ever had sexual intercourse, otherwise than by force and -against her will, with any man prior to the promise of marriage. He subsequently concluded that this was too restrictive and declined to set the verdict aside, although not supported by evidence under that rule, holding that one act of sexual intercourse could not be said to render a woman unchaste. This opens a broad field of inquiry, full perhaps of close distinctions. But the general rule of law seems to be, from the weight of authority, that although a woman may at one time have lapsed from physical chastity, if it appear affirmatively that she has reformed and at the time of the offense maintained a habit of sexual virtue, she may be deemed chaste within the meaning of the law, so that an invasion of that virtue under a promise of marriage may serve in greater or less degree to enhance the damages she would suffer by a
By the Court. — Judgment modified by reducing the damages to’ the sum of $10,000, and as so modified is affirmed. Appellant to recover costs in this court.
A motion for a rehearing was denied March 31, 1908.