Whitney v. Elmer , 1871 N.Y. App. Div. LEXIS 103 ( 1871 )

By the Court, Talcott, J.

This is action by the plaintiff for the seduction of his daughter and getting her with child. On the trial the plaintiff offered to prove by the daughter, as evidence in chief, “ that a short time previous to, and about the time of, the said .carnal knowledge of the said Sarah by the defendant, the said defendant undertook and promised to marry the said Sarah Whitney, in view and consideration of her promise to marry the defendant.” This, evidence was objected to by the defendant, was admitted, and an exception taken to the ruling.

It is perfectly well settled that evidence of a promise of marriage to the daughter is inadmissible in an action by the father. A moment’s consideration of the theory upon which the action by the father is maintained, is sufficient to show the inadmissibility of the evidence objected to. The ground of the action by the father is the loss of service of the child by reason of the sickness and inability to labor induced by her pregnancy. It is manifest that whether there has been a promise of marriage, or not, is wholly immaterial to any question legally pertinent to the [ground of the action, or the amount of damages sustained by the sickness.

The promise of marriage, and the breach of it, are the [subjects of an action by the daughter. The promise is [made'to her, and, in judgment of law, for her benefit. As b, chose in action, it is' her sole property, in which the" rather has no legal interest. Of course there is manifest Banger, if such evidence is allowed to be given in an action by the father, that damages may be given in that action based to some extent upon the breach of the marriage promise. Although the moral guilt of such a transaction is very much enhanced, where advantage has been taken of the relations created by an engagement of marriage, to overcome the scruples of a virtuous female, followed by a repudiation of the contract, yet the guilty party is liable, .in this as in all other cases of wrongs, to one recovery of damages in a civil action for the same' act. The authorities are very clear in rejecting this species of evidence in the father’s action. (Sedg. on Damages, 544, 2d ed. Gillet v. Mead, 7 Wend. 193. Brownell v. McEwen, 5 Denio, 367.)

It seems to be claimed by ihe counsel for the respondent, that the admission of the evidence -in question was qualified by some special purpose to which its effect was limited. It is sufficient to say, in answer to this suggestion, that no such qualification is apparent in the case. According to the case, the evidence was offered in chief, by the plaintiff^ and admitted as general evidence in the cause, without qualification or limitation. If it appeared that any position had been taken, or might have been taken, by the defendant, looking towards a mitigation of damages, upon the ground that the father, by neglect of the proper care and protection of his daughter, had recklessly exposed her virtue to temptation or assault, and thus in some measure contributed to the injury of which he complained, the fact of a pending engagement of marriage between the parties might have been admissible, under' some circumstances, (s|6 Gillet v. Mead, supra,) but no such foundation for the admission of the evidence appears in this case.

Moreover, it would seem as though the learned justice, at the trial, must ■ have been understood as holding that the promise of marriage and the breach of it, which i appears was proved in the case, constituted a substantive ground of damages. The ease states that the court instructed the jury “ that if they found that the defendant promised to marry0the plaintiff’s daughter before he had sexual intercourse with her, they were at liberty to consider that, with other circumstances attending her seduction ; and they might also regard it as one of the circumstances of the case, in determining the damages to be recovered by the plaintiff, not for the ‘ purpose of giving damages for a breach of promise of marriage, but as one of the circumstances attending, and under which the seduction of the daughter was effected.”

[Fourth Department, General Term, at Rochester, September 4,1871.

ISTow, on the case as presented to us, it does hot appear how the jury were authorized to ££ regard it (the promise of marriage,) as one of the circumstances of the case in determining the damages to be recovered by the plaintiff.” This instruction was excepted to, and the counsel for the defendant, presenting the idea in various forms in different requests, in substance, requested the judge to expressly instruct the jury that the plaintiff in this action was not entitled to recover therein any additional damages on account of the promise of marriage. These requests the court refused, and the defendant excepted.

We think the defendant was entitled to the instruction asked for, in view of the fact that the evidence of the promise of marriage had been admitted, and of the ambiguous character of the instruction on that subject actually given.

The judgment should be reversed and new trial ordered, costs to abide the event.

Mullin, P. J., and Johnson and Talcott, Justices.]