Klitzke v. Davis

Jones, J. In this action the complaint alleged the marriage contract, the plaintiff’s willingness to perform it, that she was debauched by reasón of the contract, and that the defendant refused to carry out his promise. The answer denied that the agreement was made, and alleged that at the date of the alleged contract defendant was much younger than she and that by reason of greater age and experience the plaintiff had debauched him. From the cross-examination of the plaintiff we infer that the defense chiefly relied on was that the promise to marry was in consideration of sexual intercourse and therefore illegal. This claim and the claim that the damages allowed were excessive are earnestly urged in the brief for appellant. There is a direct conflict in the testimony of the parties as to the time of the agreement to marry. The plaintiff testified that it was made some days before July 18, 1916, when, according to her statement, the first sexual intercourse took place. According to defendant’s testimony the sexual relations began in 1915, and no marriage agreement was made until 1918 and while he was in France. Doubtless all this testimony was considered by the jury, and from their verdict it is fair to assume that they believed the plaintiff’s statement to the effect that she had repeatedly been solicited to comply with his desires but had refused until after the mutual agreement to marry had been made and for some days thereafter. Although dur [429] ing the severe cross-examination of plaintiff her testimony was somewhat confused and perhaps even conflicting, she was emphatic in her testimony on this subject. ' We cannot say that the jury was not justified in believing her. It is urged by appellant’s attorneys that the court erred in holding that the only question for consideration was that of damages. It suffices to say that the defendant admitted that he had made the promise while overseas and that his letters to her clearly prove the promise. It is argued that the court erred in failing to instruct the jury that if the promise was made in consideration of illicit intercourse it was void. The circuit judge gave no such instruction. He may have considered this unnecessary because no such defense was pleaded or because no such instruction was asked. If he had given elaborate instructions on this point, it is probable from the evidence that the jury would have found that the seduction took place after the promise of marriage. The following statement of this court in Falkner v. Schultz, 160 Wis. 594, 150 N. W. 424, where a similar question arose, is quite applicable: “The answer to this contention is that there is ample evidence that the promise of marriage was not based upon an illegal consideration, viz. illicit intercourse, and that the seduction occurred after the promise of marriage, and that such promise of marriage by defendant was frequently repeated and renewed on different occasions when the plaintiff yielded her person to defendant.” It is argued that the damages allowed are excessive; that the plaintiff was older than defendant by about five years; that there was no proof that the defendant had property. The jury had the right to take into consideration the usual elements of damages in actions of this character. Plaintiff was entitled to compensation for the disappointment in her reásonable expectations of pecuniary advantage from marriage with defendant. They could properly consider the injury to her feelings and the mortification and mental suf [430] fering which followed the rude breaking up of the long engagement. The defendant had dissuaded the plaintiff from association with any other man and begged her to remain true to him. Meanwhile the possibility of any other marriage was becoming more rémote. The jury were properly instructed that if there was sexual intercourse while there was no promise to marry the plaintiff would not be entitled to rer cover therefor; but that if the defendant by reason of the promise of marriage was enabled to and did seduce the plaintiff, this seduction might be taken into account in aggravation of damages. The jury probably believed that the plaintiff was seduced by the defendant by reason of the promise of marriage, and that he used her for the gratification of his passions when opportunity offered for nearly three years; that then without any just cause he discarded her under such circumstances as impaired her social standing and darkened her. life. There was testimony from which the jury might have believed that her repudiation by him was wanton and ruthless and intended to wound her feelings and injure her prospects in life. They may have believed that the allegation in the answer that defendant was debauched by the plaintiff was made in bad faith and utterly without foundation. Since there was no proof of property owned by the defendant the verdict was undoubtedly a large one, and we should have been better satisfied if it had not exceeded $5,000. But the facts present a case where a large verdict was justifiable. It is well settled that in this class of cases the amount of damages is a subject peculiarly in the province of the jury. On the motion for a new trial the circuit judge declined to reduce the verdict. We cannot say that in assessing the damages, compensatory or punitive, the jury were influenced by passion or prejudice, or that the discretion of the circuit judge in denying a new trial was not properly exercised. By the Court. — Judgment affirmed.