Booren v. McWilliams

• Decision Date: 27 April 1916
• Citation: 34 N.D. 74,157 N.W. 698
• Parties: BOOREN v. McWILLIAMS.
• Court: North Dakota Supreme Court

34 N.D. 74

157 N.W. 698

BOOREN

v.McWILLIAMS.

Supreme Court of North Dakota.

March 24, 1916.

Rehearing Denied April 27, 1916.

Syllabus by the Court.

In an action to recover for a breach of promise of marriage aggravated by seduction, evidence examined, and held sufficient to justify the verdict.

Having held on a former appeal that the evidence, which was substantially the same as on the present appeal, was sufficient to support the verdict, such decision is binding as the law of the case.

The recovery is sustained as against an attack that the evidence is of such a character that the verdict should be set aside as a matter of discretion; also as against an attack that the verdict is against law.

A verdict for $10,000 is sustained as not excessive.

Appeal from District Court, Towner County; A. G. Burr, Special Judge.

Action by Anna Booren (Mrs. L. C. Britten) against George E. McWilliams. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Affirmed.Bangs, Netcher & Hamilton, of Grand Forks, for appellant. Cuthbert & Smythe, of Devils Lake, and L. H. Sennett, of Cando, for respondent.

FISK, C. J.

Action to recover damages for breach of promise of marriage aggravated by seduction. Plaintiff had judgment in the court below for $10,000 and costs. Defendant appeals both from the judgment and from an order denying his motion for a new trial. The cause was here on a former appeal, and for a general statement of the facts see opinion in 26 N. D. 558, 145 N. W. 410, Ann. Cas. 1916A, 388.

Appellant relies upon the specifications urged on his motion for a new trial in the district court. These are four in number as follows:

“(1) Insufficiency of the evidence to justify the verdict.

(2) That the evidence is of such character that the verdict should be set aside as a matter of discretion.

(3) The verdict is against law and contrary thereto.

(4) Excessive damages appearing to have been given under the influence of passion or prejudice.”

We observe that appellant does not challenge the correctness of a single ruling of the trial court made during the lengthy trial; nor does he challenge in any way the instructions to the jury. We therefore have a right to assume, at least in so far as the presiding judge is concerned, that from defendant's viewpoint the trial was eminently fair and free from prejudicial error.

Counsel for appellant in their motion for a new trial set forth numerous particulars wherein they assert that the evidence is insufficient to justify the verdict as follows:

“(1) It is insufficient in this: There is no evidence whatsoever showing or tending to show an express promise of the defendant to marry the plaintiff.

(2) It is insufficient in this: It shows no meeting of the minds, no mutuality, no offer of marriage on the part of the defendant, no acceptance on the part of the plaintiff.

(3) The only evidence in this case as to direct promise of marriage is that testified to by plaintiff, that the night before defendant had sexual intercourse with the plaintiff, he said, while hugging and kissing her, ‘As we are going to get married we might as well get acquainted.’ The plaintiff made no response to this statement. Such statement does not establish or tend to prove an express, mutual, or implied promise of marriage. The verdict, therefore, does not conform to the evidence, but, in fact, conflicts therewith.

(4) It is insufficient in this: There is no evidence in the case from which an implied promise of marriage can be inferred or found, as none of the indicia usually and generally attendant upon an engagement of marriage shown or established by any evidence.

The defendant never gave her any presents, never presented her with an engagement ring, never escorted her to any public place or to any entertainment, did not keep company with her, and was not seen in her company. Defendant never admitted to his or their acquaintances any engagement of marriage, and never introduced her as his betrothed wife.

(5) It is insufficient in this: That the acts and conduct of the plaintiff, as disclosed by her own testimony, fail to establish any implied promise of marriage, and are inconsistent, and in conflict with an engagement to marry, in this: She continued to work for the defendant for wages, after the acts of sexual intercourse testified to by her. She kept company with other men till toward the close of July. She went to dances with other men during the time she claimed to be engaged to the defendant, and stayed out all night long with other men during that same time. She went to public entertainments with other men, when the defendant attended the same entertainments in the company of others. She had other men call on her.

The plaintiff claims that all acts of sexual intercourse between her and defendant took place in her own room, and that he slept with her in the month of May. The evidence shows that at that time Gladys Britten slept with plaintiff every night, she being a girl about 11 or 12 years of age.

(6) It is insufficient in that it fails to prove seduction of the plaintiff by the defendant.

(7) It is insufficient in that it fails to show that the sexual intercourse, if any, was subsequent to the promise of marriage alleged.

(8) It is insufficient in that it fails to show that plaintiff consented to sexual intercourse with defendant, solely by reason of such promise.

(9) It is insufficient in that it fails to show that there would have been no consent except for the promise.

(10) It is insufficient in that it fails to show who was the father of the child born to plaintiff. The evidence of the plaintiff as to the paternity of the child is contradicted in every particular, and her testimony stands alone.

(11) It is insufficient in this: That evidence of sexual intercourse is incompetent and inadmissible to show a mutual or implied promise of marriage, and when such relations appear from the testimony, as in this case, to have been illicit, immoral, and illegal in their inception the evidence is incompetent and inadmissible to prove a contract of marriage, as a promise or a contract based on an immoral or illegal consideration is against public policy, is unenforceable, and absolutely void.”

[1][2] In their printed brief in this court they argue the above particulars under eight separate points or subheads, but we deem it sufficient to treat the matters together and only in a general way. It would serve no useful purpose to go into minute details in reviewing the testimony or to quote at length therefrom. It is, in all essential particulars, substantially the same as disclosed by the record on the former appeal. If anything it is a little stronger in respondent's favor on the present appeal than it was on the former one. On such former appeal the question of the sufficiency of the evidence was raised and elaborately argued, and we there held it sufficient for submission to the jury, and we see no good or sound reason for holding to the contrary on this record, even if we were free to do so. But the testimony being in substance and effect the same on both appeals, our decision on this point in respondent's favor on the first appeal became the law of the case, and under a well-settled rule was controlling on the district court at the last trial and is controlling here on this appeal. 3 Cyc. 402; Street v. Chicago, etc., R. Co., 130 Minn. 246, 153 N. W. 518;Musser v. Musser, 98 Neb. 398, 152 N. W. 746. We need not rest our decision, however, on such rule alone, for an examination of the record serves to convince us that while the testimony is in some respects weak and unsatisfactory we think it was nevertheless clearly the duty of the trial court to submit the same to the jury. The distinguished counsel for appellant evidently thought likewise at the trial, or they at least recognized the force of the rule above mentioned, for they made no motion either at the close of plaintiff's testimony or after both parties had rested their case, to exclude the same from the jury. They...