Thorn v. Tetrick

Miller, President: In an action for damages for the alleged breach by defendant of his promise to marry her and for seducing’ her under such promise, plaintiff obtained a verdict and judg'-mept against him for $8,000.00. When the case was called for trial January 20, 1922, the defendant moved the court to continue the case to a future day of the same term, on two grounds; first, the sickness of one of his attorneys, who on that occasion was unable to be present; second, the absence of a witness, an aunt of the defendant. Plaintiff resisted this motion. On the first ground plaintiff relied on the fact that defendant had two other .able attorneys of record, and who were there present and who are shown to have afterwards conducted the defense. Of course the absence of one of the attorneys, even if he had been the léading one, would not have constituted good ground for a continuance. Cicerello v. Ches. & Ohio Ry. Co., 65 W. Va. 439. And the absence of a witness, even if shown to be a material one, will not be good cause for a continuance, without a showing of due diligence to procure his attendance. In this case, the absent witness resided in the county but was then absent in another state, had not been summoned, and no effort had been made to secure her deposition. Defendant, according to his affidavit, relied solely on her alleged promise to return and give evidence on the trial when notified. His affidavit shows that his only effort to get' the witness was a telegram sent her the day before the case was called for trial, to which message she replied: “Can’t possibly come, sick.-” He says in his affidavit that he expected to be able to prove by this witness that plaintiff, after she became pregnant, in a conversation admitted that there never had been any engagement or agreement between her and him, and that he could not prove the same by any other witness. The fact of the contract or promise .of marriage, not the supposed conversation, was the material thing. Such testimony, if given, would have been of the same character and cumulative of the other testimony of defendant himself. 'Due diligence to obtain the presence of — 459 — this witness or her testimony was not shown, and her absence constituted no good ground for 'a continuance. Ohio Valley Bank v. Berry, 85 W. Va. 95; Cicerello v. C. & O. Ry. Co., supra; State v. Duffy, 75 W. Va. 299. But it is said* that the defendant did .not move a continuance, but only a postponement to a later day in the term, and that the rule as to diligence in such cases is different. The authorities make no distinction. Some eases do hold that sometimes the courts will more readily exercise their discretion in favor of an application to postpone than when a continuance is asked for. 13 C. J. 127. On the trial defendant took a bill of exceptions to the ruling of the court refusing on his motion to strike out ‘1 all of the plaintiff’s evidence relative to the alleged attempt of the defendant to have an abortion performed on plaintiff,” setting out in said bill of exceptions in full the particular evidence which counsel regarded as relating to the subject. None of the evidence recited in this bill of exceptions relates to an attempted abortion, and very little of it bears on the subject of abortion at all. The defendant is shown to have suggested it and sought out a nurse, Miss Clayton, and then suggested it to the plaintiff; and then both plaintiff and defendant went together to see Miss Clayton, who advised both against this course; and plaintiff says she did not consent, and that as' suggested by Miss Clayton, they both agreed to get married and settle the matter in that way, and afterwards, on defendant’s prbmise to support her while there, she went with defendant’s aunt to Pittsburgh to remain until the child was born, and then return and they would be married. But the money he gave her running out, and he refusing to supply her any more, she returned home. Practically all of the evidence contained in the.bill of exceptions relates to defendant’s renewed promises of marriage,-his threats to kill her on one occasion, and his apparent purpose to kill himself by poison, and her assisting him to recover from the effect of taking the poison. Little, if any, of this evidence could be excluded on the theory that it tended to prove an attempt at abortion,. and it was so related to pertinent evidence bearing on the contract of marriage and the promises of — 460 — defendant relating thereto that counsel have not pointed out particularly what part should be excluded. Their exception goes generally to the whole of the evidence recited. The rule is that if in a deed or other document there is any evidence relative and competent on the issue to be tried, a general objection will not be availing; the objection must go to the specific part not admissible, or its admission will not be regarded as error in the appellate court. Schaubuch v. Dillemuth, 108 Va. 86; N. & W. Ry. Co. v. Sutherland, 105 Va. 545; Hubbard v. Equitable Life Assur. Soc., 81 W. Va. 663, 673, and cases cited, among them State v. Calhoun, 67 W. Va. 666, which is particularly applicable to the bill of exceptions here involved. The evidence sought to have excluded, moreover, relates also to the seduction and abandonment of plaintiff by defendant. Such evidence is competent and admissible in aggravation of damages according to one of the cases cited by defendant’s counsel. Geise v. Schultz, (Wis.) 10 N. W. 598. In the other cases cited abortion had actually been accomplished. Reversal is also sought on the ground that the court refused defendant’s instruction number 5, the only one of the six requested which was refused. It was rightly refused, among others for the reasons just assigned for overruling defendant’s motion to exclude the evidence contained in his bill of exceptions number four. If given, it would have told the jury “that in their deliberations as to their verdict in this case, they must exclude from their consideration all evidence showing or tending to show, that the defendant attempted to have an abortion performed on the plaintiff.” This of course must have been intended to exclude all the evidence covered by defendant’s bill of exceptions number four. As pointed out, there was no evidence of an attempt by defendant to' commit an abortion, nor that an abortion was committed. As far as the evidence on that subject went, it amounted to nothing more than a suggestion or request to plaintiff to suffer an abortion, and not being accomplished the plaintiff could receive no damages as a result of an abortion not committed. The evidence showed seduction, and tended to show defendant guilty of this wrong; and as pointed out already — 461 — such evidence was competent and admissible in aggravation of damages. Our cases say also that in an action or suit of this kind it is proper to aver and prove seduction in aggravation of damages. McKinsey v. Squires, 32 W. Va. 41; Dent v. Pickens, 34 W. Va. 240. Lastly, the excessiveness of the verdict is relied on to reverse the judgment. It is said in argument that as compared with the financial worth of the defendant, the verdict was out of due proportion. But his financial worth is not by any means the only thing the jury may consider* Our cases properly hold that in cases of this kind the jury may in addition take into consideration the social position of defendant; the rights and privileges plaintiff would have acquired, financially and socially, if defendant had performed his contract; the worldly advantages of a home provided for her; the' station she would have occupied as a result of the marriage; the injuries and wounds to plaintiff's feelings, affection and pride; the disappointment, humiliation, mortification, contempt, pain and distress of mind suffered in the loss of her marriage; and the injury to plaintiff’s reputation and future prospects of marriage. Kendall v. Dunn, 71 W. Va. 262. See also Baumle v. Verde, (Okla.) 41 L. R. A. (N. S.) 840, and elaborate notes. ' And if the actual damages be not sufficient in the minds of the jury for that pupose the jury may also add exemplary damages if it be shown that the defendant entered into the marriage contract with improper motive and then ruthlessly and unjustifiably broke it, for then he not only does a wrong to the woman, but in a remote sense to society, which encourages marriages. 4 Sutherland on damages, (4th ed.), §987; 2 Sedgwick on damages, (9th ed.) §637a. And as to the amount of damages in breach of promise cases, owing to the nature of such cases, it has been found impossible to fix the amount of compensation by any precise rule, and as in torts the measure thereof is a question for the sound discretion of the jury in each particular instance. 2 Sedgwick on Damages, §637. The only limitation on the jury is that they shall not vitiate their verdict by any evidence of bias, partiality, prejudice or fraud and corruption. We — 462 — do not think there is evidence o£ any misconduct on the part of the jury, in this case. Counsel cite a few cases -as examples of verdicts which have been held to be excessive, where the facts were, as counsel conceive, very similar to the facts in this case. We may in this connection refer counsel to the very much larger number of cases where verdicts as much or more out of proportion to defendant’s financial circumstances than the verdict here involved, were sustained. See 41 L. R. A. (N. S.), note page 854; 2 Sedgwick on Damages, p. 1273, notes. In many of those cases seduction of the plaintiff, as in this case, was one of the aggravating facts justifying larger damages. Necessarily the damage done the woman is much greater where she has been seduced under promise of marriage than where such added wrong is not involved. In this case plaintiff and defendant are shown to have been children brought up in the same neighborhood, to have gone to school together, and to have been lovers for years before the breach of the relationship thus established occurred. Much reliance seems to be placed by defendant’s counsel on certain phases of the evidence which in their opinion should go to reduce the amount of the damages which plaintiff is entitled to recover. It is said, that seduction is not shown; first because of the plaintiff’s evidence tending to show that in the beginning defendant’s efforts at sexual intercourse were accomplished by force, or rape, which can not be considered in an action for breach of promise; second that her evidence shows a case. of mere voluntary sexual intercourse, not upon promise of marriage; third, that if seduction was accomplished, it occurred more than three years before suit brought. The only evidence of plaintiff upon which counsel predicate the theory of rape is that in which she describes the first occurrence- when she submitted to defendant’s embraces; that was in an automobile, when they sat in the rear seat and he put his arms around her and pressed her so hard that she said she could hardly breathe. It is manifest from the whole of her evidence that she did not mean that he had thereby forced her against her will. The defendant admits a promise — 463 — of marriage, but he says it was only in jest, and that he was not sincere in his proposal. Plaintiff does not rely on this and their subsequent conduct of this character before-there was a suspension thereof because of objections by defendant’s mother and her condition of health, and during defendant’s absence in'the world war, but on his renewed promises thereafter, in October or November 1919, and her subsequent seduction on such renewed promises of marriage. She testified that before the original suspension of their love affair, it was agreed that they should later resume the relationship, and that it was resumed as she stated. Referring to the first act of sexual' intercourse, counsel on cross examination asked plaintiff the following question, and received the following answer: “Then it was not in consideration of your having sexual intercourse with him that he promised he would marry you. A. No. ’ ’ . But to understand this evidence reference must be had to what witness had said just before she gave this testimony. She then said that before that occasion defendant had promised to marry her. And of course she did uot mean to say that she had submitted to such intercourse in advance of defendant’s engagement to marry her. But it is said on the authority of Salchert v. Reinig, (Wis.), 115 N. W. 132, that a woman whose virtue is already lost can not be seduced until it is affirmatively shown she had reformed. Plaintiff swears that she had never had such improper relations with any other man, and that the last promise and conduct of defendant which accomplished her ruin was but a renewal of their former relationships according to agreement ; and according to the eases cited the subsequent seduction under a renewed promise to marry is admissible in evidence on the question of damages. We are of opinion to affirm the judgment. Affirmed.