Welker v. Metcalf

Opinion by Me. Justice Mesteezat, The defendant was too late in raising the question of the right of the plaintiff to maintain an action of trespass for the injuries complained of in this case. The writ was issued on May 29, 1901. The defendant appeared by counsel, and on July 8 ruled the plaintiff to file her declaration on or before the first Monday of the following August. The plaintiff’s statement was filed on July 13, and on the same day she ruled [378] the defendant to plead. The plea of “ not guilty ” was entered by the defendant on August 5, 1901, and on September 2 he ruled the plaintiff to file a bill of particulars, which was done on September 16, 1901. The case was called for trial on November 11, and was continued on..the application and at the costs of the defendant. On February 5, 1902, defendant’s counsel moved the court for leave to withdraw the plea and to file a special demurrer. The record discloses no action by the court on this motion. The demurrer was filed and overruled. In this state of the record the learned judge was right in refusing to permit the defendant to withdraw his plea. The statement which he ruled the plaintiff to file informed him of the cause and of the form of action. He then had the information as well as the opportunity to enable him to plead intelligently and to attack the form of action, if he so desired. Instead of filing a demurrer and raising the question of the right of the plaintiff to maintain trespass for the cause of action set out in the statement, he entered a plea of not guilty, thereby admitting that the action was proper in form, and waiving his right to attack it on that ground. Subsequently he ruled the plaintiff to file a bill of particulars, and when the case was on the trial list, had it continued at his own cost without any suggestion by him that the plaintiff had mistaken her form of action. It was nearly three months after the postponement of the trial, that he made his first attempt to abate the action by filing a demurrer. He was clearly too late, and by his delay must be held to have waived any defect or error in the form of action. The fifth assignment must be sustained. The court affirmed the defendant’s fourth point that “ there is no evidence in the 'case that the defendant at the time of the alleged promise to marry, had any knowledge of the conduct of the plaintiff being other than that of a chaste and virtuous woman.” It was therefore manifest error to submit to the jury, as the trial court did, the question whether or not the defendant knew the plaintiff was of bad charactor for chastity at the time he entered into the alleged marriage contract. The plaintiff’s character for chastity at that time and the defendant’s knowledge of it, were both material facts in the case. If her char [379] acter in this respect was bad at the date of the contract, and the defendant then knew the fact, her bad character would be no defense to this action! If, however, he was ignorant of the fact, her bad character can be interposed as a defense and the contract cannot be enforced against him. “ A man has a right to require,” says Woodward, J., in Von Storch v. Griffin, 77 Pa. 504, “ that his wife shall come to him with an unstained name. If he is inveigled into an engagement by a harlot, he is the victim of a sheer, bald fraud. Elaboration of a subject like this would be simple platitude. It is enough to say, that the law will not enforce a contract of marriage in favor of a party to it who is not fit to be married at all. A man is not bound by such a contract if, in ignorance of her true character, he has entered into it with a woman who has earned an evil reputation by a vicious or reckless life.” The learned judge submitted to the jury with proper instructions, the question of the character of the plaintiff for chastity. There was sufficient evidence to warrant the submission. He then told the jury that if Mrs. Welker’s character for chastity was bad, and the defendant was ignorant of the fact, the verdict should be for the defendant, but if he knew her character when he entered into the contract, or found it out during the engagement and persisted in keeping up the engagement, her bad character would not prevent a recovery, but would only mitigate the damages. The verdict was for the plaintiff. The jury, therefore, under the charge found that the plaintiff’s character for chastity was not bad, or that it was bad but the defendant knew the fact. What their finding was on this question is, of course, not known. But that they may have found that the defendant knew the plaintiff’s character was bad when there was no evidence to support the finding requires the verdict to be set aside. The jury should have been plainly told that if they found that Mrs. Welker’s character for chastity was bad at the time the marriage contract was entered into, there could be no recovery in the action, and the verdict should be for the defendant. As the case goes back for a retrial, we do not deem it necessary to consider the other assignments of error. The letters were admissible as evidence tending to prove the alleged con [380] tract and we think the charge, taken as a whole, left the weight to be given them to the judgment of the jury. The fifth assignment is sustained, and the judgment is reversed with a venire facias de novo.