Leavitt v. Cutler , 37 Wis. 46 ( 1875 )

Lyon, J.

This is an appeal by the defendant from a judgment recovered by the plaintiff in an action brought by her for the breach, by the defendant, of an alleged contract of marriage between’ the parties. The exceptions to the rulings of the>cour.t, taken by the defendant during the progress of the trial, are very numerous. But few of them were urged on the argument as grounds for reversing the judgment, and even those so urged have not all been considered. Want of time, occasioned by a great pressure of other official duties, has compelled us to confine our deliberations to a few of the more important questions raised by the exceptions.

I. It is averred in the answer, by way of defense or mitigation of damages, or both, that the plaintiff is a woman of unchaste character, that before the alleged promise-of marriage she had been guilty of lewd and lascivious practices with several men — naming them and giving places and dates, — and had, at a certain place and during a certain year, miscarried ; of all which, the defendant, at the time of the said supposed promises, was wholly ignorant. Testimony bearing upon some of these charges was given at the trial, while others of them seem to be entirely unsustained by proofs. The following instruction was asked on behalf of the defendant and refused by the court: “ If the jury shall find that any of the specific allegations in the defendant’s answer are not sustained by the proof, it shall not be considered in aggravation of damages which they may find for the plaintiff, unless they shall first find from the evidence that he made said charges in bad faith, and knowing them to be false.” The learned circuit judge commented to the jury on the proposed instruction, as follows: “ I do not understand the law so to be. I d'o not think that in an action of this character a defendant can be permitted to make such charges as have been made by the defendant against the plaintiff in this case, with impunity, unless they are sustained by the proof. They are serious charges, and if the defendant has failed to prove them, this failure aggravates the damages ; and if you find from the evidence that these charges are not sustained by the proof, this failure may properly be considered by you in aggravation or enhancement of the plaintiff’s damages.”

We entertain no doubt that the rule of damages was stated too broadly by the learned circuit judge. We undertand the true rule is, that if the charges of immorality made against the plaintiff in the answer are false and were made in bad faith, they may be considered by the jury in aggravation of damages, but not otherwise. It is not alone sufficient that the the charges are not proved, or that they are false in fact. Before they can become a basis of enhanced damages, the jury must be satisfied that they were made dishonestly or in bad faith. The rule was thus settled in this state, in the case of Simpson v. Black, 27 Wis., 206, and is approved by Mr. Sedg-wick in his valuable treatise on the Measure of Damages (6th ed.), p. 456, n. 2.

If the defendant knew that the charges were false when he put in his answer, of course they were made in bad faith. So if they were false in fact, and he had no sufficient reason to believe that they were true, bad faith on his part may reasonably be inferred.

The instruction asked on behalf of the defendant and refused, is to the effect that the charges cannot be considered in aggravation of damages unless the defendant made them in bad faith, and knew them to he false. This is objectionable in that it ignores the fact that they may have been made in bad faith although the defendant did not know that they were false. The proposed instruction was, therefore, properly refused for that reason. But the instruction actually given was equally objectionable because it made the falsity or truth of the charges the sole test as to whether they might or might not be considered by the jury in aggravation of damages, and entirely ignored the element of good faith.

.This error may have materially affected the verdict, adversely to the defendant. We cannot say from the record that it did not Hence it is an error which necessarily works a reversal of the judgment.

II. The answers of the defendant (consisting of the original -and two amended answers) and an affidavit made by him during the progress of the cause, for the purpose of obtaining a continuance, were read in evidence on behalf of the plaintiff, under objection. Such affidavit contains some charges of immorality against the plaintiff not contained in the answers.

We have already seen that the charges in the answer, if false and dishonestly made, may be considered by the jury in aggravation of damages. But we have seen no case which extends this rule beyond the answer. The rule is anomalous when applied to an action ex contractu, and it is difficult to sustain such an application of it on principle. We think it should not be extended, and that it was error to permit the affidavit to be read in evidence. These remarks apply also to the original and first amended answer. The only pleading which can properly be used for the purpose of enhancing damages, is the second amended answer, upon which alone the defense to the action rests.

It may further be observed that the réading in evidence of the answer was entirely unnecessary. The pleadings which make up the issue to be tried are always before the court and jury for all legitimate purposes, and it is awkward practice formally to put them in evidence.

III. The plaintiff was permitted, under' objection, to introduce considerable testimony tending to disprove certain of the charges contained in the two amended answers and in the affidavit for a continuance, concerning which no testimony had been offered by the defendant This was error. Until some proof was introduced by the defendant to sustain such charges, they stood disproved by the presumption of innocence, and no testimony to disprove them was necessary or admissible.

IY. The plaintiff testified that after the defendant promised to marry her, she accorded to him the privileges of a husband by submitting to his embraces. This testimony was duly objected to on the ground that the complaint contains no corresponding averments. The court overruled the objection, and instructed the jury that if the defendant seduced the plaintiff Tinder promise of marriage, and if the charges against her were not proved, such seduction might properly be considered as enhancing the damages, and they would be justified in rendering a verdict for such liberal amount as, in their judgment, would be a fair compensation for mental suffering, injury to reputation and loss of virtue, thus sustained by the plaintiff.

The authorities seem to sustain the instruction as correct in the law, but we think the better practice is to require that the seduction should be alleged in the complaint before any evidence thereof (if duly objected to) is received. To this effect is the case of Klopfer v. Bromme, 26 Wis., 372.

Perhaps, also, the same rule would exclude' proof that the defendant’s promise of marriage was obtained fraudulently, if such proofs were objected to for the reason that the answer does not interpose that defense.

But it is quite unnecessary to enlarge upon these questions, inasmuch as the circuit court has full power to allow the pleadings to be amended to meet the exigencies of the case, and, on proper application, will doubtless exercise that power in furtherance of justice.

By the Court. — The judgment is reversed, and a venire de novo awarded.