Poehlmann v. Kertz

Mr. Justice Burke delivered the opinion of the court. After reading the evidence introduced in this case, no doubt can be entertained that the defendant, appellant, did promise to marry the plaintiff. It is true he makes denial, and says that if he made a promise of marriage “ it ivas maybe in a joke.” His statement that he gave her a. diamond ring and talked with her after the midnight hour alone in a manner as no man would, and his written admission of agreement to marry plaintiff, together with the other evidence in this case, convinces us that he had promised to marry her and even anticipated some of the marital rights. An examination of the evidence will, we think, completely refute the suggestion of appellant, that the promise of marriage by defendant was made in consideration of sexual intercourse; we therefore find that the promise of marriage in this case was not based upon any immoral consideration and that the cpurt did npt err in refusing to exclude the evidence and instruct the jury to find the issues for the defendant. There is no averment of seduction in the declaration in this case. It is therefore contended by appellant that evidence of seduction can not be received, since it has not been specially pleaded in this case, and because the law does not imply that damages for seduction are a natural result of a breach of promise of marriage. In Fidler v. McKinley, 21 Ill. 308, is found a case similar to the one at bar. The declaration therein contained no averment of seduction, and yet the court allowed evidence of seduction and specifically instructed that the seduction might be taken into consideration by the jury in aggravation of damages. The argument of counsel for appellant, that evidence of seduction was improper in this case and an instruction permitting the jury to consider seduction in aggravation of damages should not have been given, was very vigorously stated in a dissenting opinion of Judge Breese. But the opinion of the court in Fidler v. McKinley remains the law of this state on these subjects, and is, therefore, decisive of these questions. In this case the court further says: “ In the case of Tubbs v. Van Kleek, 12 Ill. 446, the court held that in actions for breach of promise of marriage, a seduction, if in consequence of a promise, may be given in evidence in aggravation of damages. ' In that case the authorities were fully reviewed, and the decision made on mature deliberation, and we are satisfied that the rule there adopted is correct in principle and just in its operation, pnd are unable to see any reason for its being overruled or modified.” In Lowden v. Morrison, 36 Ill. App. 495, it is held that evidence of seduction in an action for breach of promise of marriage is admissible, though the seduction is not charged in the declaration. „lt is not necessary to plead that which is merely evidence. The weight of authorities in other states is that general, allegations of a promise to marry and its breach, will permit evidence of seduction. 3d Am. & Eng. Ency. Pl. & Pr. 688, and cases there cited under article, Breach of Promise of Marriage. The record bearing on the subject of seduction shows that evidence relating thereto was brought out through the attempt of appellant to prove that plaintiff was not virtuous. The counsel for appellant did not object to the question which called out the answer that plaintiff had intercourse with defendant. In considering this portion of the case, we think no injustice was done the defendant. The verdict of the jury was $2,500, and is claimed by appellant to be excessive. In Thorn v. Knapp, 42 N. Y. 474, it is said, that “if the defendant comes into court and attempts to prove the plaintiff guilty of misconduct with other men of which he knew she was not guilty, or when the misconduct was committed with himself, it aggravates the injury and aggravates the claim to damages.” This proposition is based on the principle that the jury in cases of breach of promise of marriage were entitled, when they found the contract of marriage made and broken, to take into consideration all the facts and circumstances of the case, and particularly the conduct of the defendant in his whole intercourse with and treatment of the plaintiff. There is evidence in the record tending to show that defendant was a man of experience in the world; had children of his own; promised the plaintiff to marry her; caused her to make public announcement to her family and friends of her engagement, and after the assurance of marriage, led her to surrender her person to his passion, and then, upon the flimsy pretext that her parents were a little poorer than he had supposed, abandoned her. It is entirely probable that from this evidence the jury may have believed that defendant had no regard whatever for the person and virtue of a woman who had trusted him and whom he- had ruined and brought into disgrace among her friends in Chicago, and at the home of her parents in Wisconsin. In .this class of cases a jury is particularly fitted to determine the amount of the damages, and we see no reason in this case to disturb their verdict. The principal objection of appellant to the instructions of law is that they do not accurately state the elements of damage which the jury might properly consider in fixing the amount of their verdict. In view of the. position taken in this opinion we shall not extend it by a further discussion of these instructions, but say that in them we find no reversible error. Judgment of the Superior Court is affirmed.