Smith v. Hall, 69 Conn. 651

69 Conn. 651 | Conn. | 1897

Torrance, J.

This ease comes before us upon a motion for a new trial for a verdict against evidence, and upon an appeal for alleged errors of the court in its rulings upon evidence and in its charge to the jury.

So far as the motion for a new trial is concerned, testing the claims of the defendant thereunder by the principles heretofore laid down by this court in the cases cited below, we are of opinion that the damages awarded to the plaintiff are not so flagrantly excessive, nor the verdict in other respects so manifestly against the evidence, as to entitle the defendant to a new trial. Clark v. Pendleton, 20 Conn. 495, 509; Waters v. Bristol, 26 id. 398, 405; Johnson v. Norton, 64 id. 134; Brooks’ Appeal from Probate, 68 id. 294.

Upon the appeal the reasons assigned are twenty-eight in number, twelve of which relate to rulings upon evidence. The first two relate to the admission of evidence as to what took place between the plaintiff and defendant prior to the divorce in May, 1893. The defendant objected to this evidence because the plaintiff was then a married woman. If this evidence had been offered and admitted to prove a promise of marriage prior to the decree of divorce, as a basis of recovery, there would be force in the defendant’s objection. Such a promise made while the woman, to the knowledge of both, is married, would be void. Noice v. Brown, 38 N. J. L. 228; Paddock v. Robinson, 63 Ill. 99. But the evidence was not admitted for any such purpose, but for the purpose, merely, of showing the relations which existed between these parties prior to the divorce, as bearing upon the question whether a promise of marriage had been made after the divorce ; and as showing the circumstances under which the plaintiff had rendered services to the defendant. Limited as it was in its effect in this way, we think the evidence was admissible. Ray v. Smith, 9 Gray, 141; Hook v. George, 108 Mass. 324.

The answer of the witness Alice Martin, which was. objected to, was hearsay and inadmissible when given; but it is difficult to see how it can have harmed the defendant, under the circumstances, or how this point could avail him upon a new trial. The defendant himself testified that he had told this witness substantially what she said he had. The answer would have been clearly admissible in contradiction of the defendant after he had testified, as he did, to the value of this property, and upon a new trial would be admissible for a like purpose. Under these circumstances we think a new trial should not be granted on account of this ruling.

The plaintiff was permitted-, against the defendant’s objection, to offer evidence of her good character and reputation for chastity, in rebuttal. In his answer the defendant alleged that the plaintiff was a person of immoral character and habits and had been the keeper of a bed-house; and he introduced evidence in support of these allegations which directly attacked the reputation of the plaintiff for chastity. Under these circumstances the ruling was correct. In cases of this kind the character of the plaintiff for chastity, when attacked, can always be sustained by evidence of reputation. Dent v. Pickens, 84 W. Va. 240; Sprague v. Craig, 51 Ill. 288; Jones v. Layman, 123 Ind. 569; Haymond v. Saucer, 84 id. 3.

As to the other rulings upon evidence it is sufficient to say that most, if not all, of them are correct, and that even if some of them are not, anew trial should not be granted on account of them.

The defendant requested the court, in effect, to charge the jury that the decree of divorce obtained by the plaintiff in May, 1893, was, as to the defendant, void, on the ground that it had been obtained by fraud in the shape of false testimony given by the plaintiff. It is undoubtely true that a stranger to the record, who is prejudiced as to some pre-existing right by a judgment, may attack it collaterally on the ground that it was obtained by fraud. Freeman on Judgments (3d ed.), §335; 1 Black on Judgments, §260; Michaels v. Post, 21 Wall. 398, 426; Kinnier v. Kinnier, 45 N. Y. 535; Ruger v. Heckel, 85 id. 483; Baugh v. Baugh, 37 Mich. 59; Webster v. Webster, 54 Iowa, 153. But the defendant is not such a stranger. No right of his was prejudiced by the judgment of divorce. His promise of marriage was made, according to his own testimony, some months after the divorce was granted. Even then, if it be conceded that there was any evidence at ail tending to show that the divorce had been obtained by fraud, the defendant could not avail himself of it to collaterally attack the judgment, and his request to have the jury charged to that effect was properly refused.

Upon comparing the- charge as given, with the other requests made, we think the court in substance complied with all those to which the defendant was properly entitled. These requests, in substance, related to the effect of insanity and want of sufficient mental capacity, upon the ability of the defendant to make a binding promise; to the effect of certain claimed insane delusions on his part; and to the conduct and character of the plaintiff which would justify the defendant in refusing to carry out his promise of marriage. The charge upon all these points was correct in law, was adapted .to the case as it was presented to the jury, and was sufficient for their guidance in coming to their verdict, and this is enough. Hartford v. Champion, 58 Conn. 268, 276.

With reference to one part of the charge, however, we think the court erred, and that was in charging the jury, in effect, that if they found the issues for the plaintiff upon both counts, she was entitled to recover upon both. Whether, upon the undisputed evidence in the case, the plaintiff was entitled to recover anj^thing at all on the first count, even if it had been the only count in the complaint, is a question which we.deem it unnecessary to consider, and upon which we express no opinion ; but under the circumstances she was certainly not entitled to recover upon'both counts. The compensation which the plaintiff agreed to take for her services, was the performance of the promise of marriage. If that promise had been performed, her claim for services would have been fully satisfied and discharged. But the damages recovered for a breach of an agreement are the legal equivalent of performance. Under the instructions of the court upon the second count, the plaintiff, in the verdict, got the legal equivalent of performance, namely, full damages for the breach of promise; and having thus in legal effect got what she agreed to take as full compensation for her services, she is not entitled to the A'alue of those services, in addition. No request to charge upon this point appears to have been made, nor does it appear that the attention of the court was’called to it in any way, and the failure to notice it doubtless occurred through inadvertence on the part of the court; but still, it was the duty of the court to charge the jury correctly upon this point, and the charge as given upon it was clearly erroneous.

This entitles the defendant to a new trial; but we do not think in this case that a new trial ought to be granted unconditionally, if the amount which the verdict gave the plaintiff under the first count can be separated from the amount given under the second count. Under the first count the plaintiff claimed to recover the amount stated in her bill of particulars, to wit, $1,817.12, with interest; and the jury were told that she was entitled to recover, under that count, such sum as they found her services to be reasonably worth, with interest thereon from the date of the. breach of promise, to the date of the verdict. As the jury, under the charge of the court, may have given her upon the first count the full amount of her bill of particulars with interest, and could not legally have given her more, the damages to which she is entitled upon the second count, would be the amount of the verdict less the amount of the bill of particulars with interest, as aforesaid. The date claimed by the plaintiff for the breach of the promise of marriage, was the last day of November, 1893. Unless the plaintiff will remit, upon the record, from the sum awarded her by the verdict, a sum equal to the amount of her bill of particulars, with interest thereon from December 1st, 1893, to the date of the verdict, a new trial is granted.

In this opinion the other judges concurred, except Andrews, C. J., who dissented.