Sherman v. Rawson, 102 Mass. 395

Sherman v. Rawson

102 Mass. 395 | Mass. | 1869

Colt, J.

The defendant’s prayers for instructions were al. given substantially as asked for, except the first and fifth. In *399these the court was further asked to rule, in substance, that the alleged seduction could not in any event aggravate the damages; that it was not an element directly or indirectly to be considered by the jury in estimating ,what amount the plaintiff should recover, although her mortification and distress of mind had been thereby increased;. and that whatever mortification she had suffered from her own criminal conduct could not be taken into account. These rulings were properly refused.

It may be true that damages for the seduction, as a distinct ground of action, cannot be added to the damages which the plaintiff is entitled to recover for a breach of the alleged promise to marry. It would be an indirect mode by which the plaintiff could recover damages for an act which cannot be the foundation of an action in favor of the party seduced, bécause the policy of the law forbids satisfaction, to a partner in the crime, for a supposed injury to which she was consenting.

But it does not follow that the fact of the seduction is not to be taken into consideration at all by the jury. The action is nominally for a breach of contract, but the measure of damages is fixed by rules not precisely like those which apply to ordinary contracts where injury to the person is not involved. They are awarded upon principles more commonly applicable in actions of tort. The plaintiff is entitled to compensation, but that term implies indemnity for all that she has suffered by the defendant’s bad faith. It includes injury to her affections and wounded pride. It involves necessarily a consideration of all the circumstances of the plaintiff’s actual situation at the time of the breach of the promise. If, by reason of an imprudent or criminal act in which both participated, she is brought to such a state that the suffering occasioned to her feelings and affections must necessarily be increased by his abandonment, then that would be but an inadequate and poor compensation which did not take it into account. Damages, it is true, must oe awarded solely for the suffering which results from the defendant’s refusal to perform his promise. But under this rule even they cannot be justly estimated without regarding the increased exposure to mortification and distress, to which she has been left, by a seduction under promise of marriage afterwards broken. „

*400We understand this to have long been the law of this Commonwealth. The remark of Parsons, C. J., in Paul v. Frazier, 3 Mass. 71, 73, in reference to the damages to be awarded in these cases, seems to go further. The defendant cannot be heard to plead, in reduction of damages, that the injury was more aggravated than it would have been if his own improper advances had been resisted. Littlehale v. Dix, 11 Cush. 364. The current of American authority, if we except the decisions of Pennsylvania and Kentucky, is all consistent with the law here stated. The last decision in Pennsylvania, while it follows Weaver v. Bachert, 2 Penn. State, 80, in the doctrine that seduction cannot be given in evidence, still states the rule that all the circumstances attending the breach, before, at the time, and after, may be given in evidence in aggravation of damages. Baldy v. Stratton, 11 Penn. State, 316. Wells v. Padgett, 8 Barb. 323. Tubbs v. Van Kleek, 12 Ill. 446. Kniffen v. McConnell, 30 N. Y. 285.

The instructions of the learned judge upon these points were accurately given in view of the distinctions stated. The jury were told that the plaintiff was entitled to such damages as she was proved to have incurred by the breach of the defendant’s promise; that they might consider the mortification and distress of mind which she had sustained in other respects than by the injury to her affections; that, if she had been seduced by him, they might consider it, in awarding damages for the mortification and distress suffered; and that, it would have a legitimate tendency to increase them.

As to the questions of evidence submitted. The answer to the defendant’s cross-interrogatory was properly admitted. To have excluded it, notice should have been given by the defendant, at the taking of the deposition, that it was offered de bene esse. Linfield v. Old Colony Railroad Co. 10 Cush. 562, 570.

The evidence of the character of the brother’s house, without any evidence to connect her with it, was rightly excluded.

Exceptions overruled.