225 Wis. 618 | Wis. | 1937
The evidence received.upon the trial resulted in issues of fact which were submitted to a jury for determination, (1) as to whether agreements to marry had been entered into between the parties, (a) in June, 1917, and (b) in June 1935; (2) as to whether the defendant, under and by virtue of a marriage agreement made in June, 1917, seduced the plaintiff and induced her to submit to sexual intercourse; and (3) as to what, (a) compensatory, and (b) punitory damages plaintiff sustained. After deliberating five hours, the jurors informed the court that because they were divided nine to three they had been.unable to agree upon answers to the questions as to whether a contract to marry had been entered into in 1917, and whether there had been seduction and intercourse induced by that agreement; but that they had agreed that a contract to marry had been entered into in 1935, and that the compensatory damages were $3,000, and the punitory damages were $2,000. Thereupon the court properly instructed the jurors as to their duty to endeavor to arrive at a complete verdict, and directed them to continue their deliberations. Subsequently they returned, and each juror stated that he could not change his conclusion as to the unanswered questions. The judge then directed them to
Upon this appeal the defendant contends that, because of the jury’s failure to agree upon answers as to whether the parties had in 1917 contracted to marry, and whether there had been seduction and intercourse induced by that contract, the verdict was so incomplete that it was error for the court to receive it; and that the jurors’ acts in assessing $3,000 as compensatory, and $2,000 as punitory damages, before they had determined whether the parties had contracted in 1917 to marry, and whether there had been seduction and intercourse induced by that contract, were manifestly arbitrary and a mere compromise, and should not have been accepted by the court as the basis for adjudging the recovery of $3,000 as compensatory damages for breach of a contract made in 1935.
The mere reception of the verdict with the questions unanswered as to whether an agreement had been entered into in 1917, and whether there had been seduction and intercourse induced thereby, was not prejudicial to the defendant. As the burden of establishing affirmative answers to those questions was upon the plaintiff, the jury’s failure to answer them must be considered tantamount to negative answers thereto. Hayden v. Carey, 182 Wis. 530, 196 N. W. 218; McLimans v. Lancaster, 63 Wis. 596, 23 N. W. 689; Baumann v. C. Reiss Coal Co. 118 Wis. 330, 95 N. W. 139. Consequently, the only contract for the breach of which a judgment for the recovery of damages can be sustained is the contract which the jury found was made in 1935. But the compensatory damages, which the plaintiff is entitled to recover for that breach, can be for only such losses as she sustained, subse
Errors are also assigned on the ground that the court erred in refusing to order a mistrial because of a question which was put to the defendant on cross-examination in such form as tO' be unduly prejudicial to him; and that the court omitted to give a requested instruction as to the effect of the fact of sexual intercourse as evidence of a promise of marriage. The prompt and positive manner in which the court sustained the defendant’s objection to the improper question, and properly instructed the jury to utterly disregard it, leaves no basis for finding that there was any dereliction or abuse of discretion on the part of the court in declining to order a mistrial. Likewise, in view of the somewhat contradictory and unduly argumentative form of the requested instruction, it was properly rejected by the court.
By the Court, — Judgment reversed, and cause remanded with directions to order a new trial.