Brown v. Thomas

• Decision Date: 11 November 1985
• Docket Number: No. 85-0472,85-0472
• Court: Wisconsin Court of Appeals
• Parties: , 54 USLW 2431 Dennis G. BROWN, Plaintiff-Appellant, v. Terry L. THOMAS, Defendant-Respondent.

Page 868

379 N.W.2d 868

127 Wis.2d 318, 54 USLW 2431

Dennis G. BROWN, Plaintiff-Appellant, v. Terry L. THOMAS, Defendant-Respondent.

No. 85-0472.

Court of Appeals of Wisconsin.

Submitted on Briefs Sept. 4, 1985.

Opinion Released Nov. 11, 1985.

Opinion Filed Nov. 11, 1985.

Hanson & Gasiorkiewicz, S.C., Racine, for plaintiff-appellant; John A. Becker, of counsel.

Schober & Radtke, S.C., New Berlin, for defendant-respondent; Steven J. Lownik, of counsel.

Before MOSER, P.J., and WEDEMEYER and SULLIVAN, JJ.

WEDEMEYER, Judge.

Dennis Brown appeals from a judgment dismissing his claim for the return of an engagement ring given to Terry Thomas. Brown argues that the trial court erred as a matter of law in ruling that recovery of the ring was barred by the statutory abolition of actions for breach of contract to marry. See ch. 768, Stats. Brown also contests the trial court's exclusion of certain evidence on the basis of the hearsay rule, remoteness and irrelevancy.

Because ch. 768 is contrary to the common law and must be strictly construed to accomplish its legislative purpose, and because the legislature intended to abolish only suits alleging emotional harm caused by the breach of contract to marry, the trial court erred in concluding that Brown had no cause of action for recovery of the engagement ring. Because the excluded evidence is not relevant to the proper theory of recovery, i.e., conditional gift and unjust enrichment, we affirm the trial court's evidentiary ruling. The judgment is reversed and the cause remanded for further proceedings.

The essential facts are concise and clear. In September, 1983, Brown and Thomas became engaged to be married and Brown gave Thomas an engagement ring. Although a specific date for the wedding was not set, it is uncontroverted that both parties considered the ring to be an engagement ring. In December, 1983, the engagement was terminated. Brown subsequently sued Thomas for return of the ring. At trial both parties alleged that the other broke off the engagement, but a jury finding on this factual issue was precluded by the trial court's decision to grant Thomas's motion for a directed verdict dismissing the complaint on the merits.

The trial court stated that the clear legislative mandate of ch. 768, Stats., was to prohibit all actions arising from a breach of contract to marry except where property was obtained by fraud. See secs. 768.01, .02 and .06. ¹ Because Brown neither alleged nor proved that Thomas fraudulently induced him to give her the engagement ring, the trial court concluded that Brown had no remedy under Wisconsin law. We disagree.

Interpretation of a statute is a question of law which we review without deference to the trial court. Town of Seymour v. City of Eau Claire, 112 Wis.2d 313, 319, 332 N.W.2d 821, 823 (Ct.App.1983). In interpreting statutes, we are guided by the principles that the aim of statutory construction is to discern the intent of the legislature, and that we will favor a construction that fulfills the purpose of the statute over a construction that defeats the manifest object of the act. Moonlight v. Boyce, 125 Wis.2d 298, 303, 372 N.W.2d 479, 483 (Ct.App.1985).

It is well settled that statutes in derogation of the common law must be strictly construed. LePoidevin v. Wilson, 111 Wis.2d 116, 129, 330 N.W.2d 555, 562 (1983). This maxim of construction provides that if a statute would change the common law doctrine relevant to the issue presented by the parties, the legislative intent must be clearly expressed. Id. at 129-30, 330 N.W.2d at 562. The ultimate goal is to construe the statute as far as possible in harmony with the common law. Bob Ryan Leasing v. Sampair, 125 Wis.2d 266, 268, 371 N.W.2d 405, 406 (Ct.App.1985).

Prior to 1959, the common law action for breach of promise to marry was recognized in Wisconsin as an action on contract, with damages determined as if the action sounded in tort. Dauphin v. Landrigan, 187 Wis. 633, 635, 205 N.W. 557, 558 (1925). As explained by the supreme court in Klitzke v. Davis, 172 Wis. 425, 429-30, 179 N.W. 586, 588 (1920), the "usual elements of damages in actions of this character" included compensation for disappointment in the "reasonable expectations of pecuniary advantage from marriage with defendant," injury to feelings, mortification and mental suffering. See also Wallin v. Sutherland, 252 Wis. 149, 154-55, 31 N.W.2d 178, 180 (1948) ($12,000 jury award upheld because the "benefits and advantages" to plaintiff of the cancelled marriage included a permanent home and the right to share defendant's property, earnings, and situation in life).

In the mid-1930's, several state legislatures began to question the continued viability of actions for breach of promise and other actions alleging interference with domestic relations, such as alienation of affections and criminal conversation, because all of these actions

have afforded a fertile field for blackmail and extortion by means of manufactured suits in which the threat of publicity is used to force a settlement. There is good reason to believe that even genuine actions of this type are brought more frequently than not with purely mercenary or vindictive motives [and] that it is impossible to compensate for such damage with what has derisively been called "heart balm"....

Prosser and Keeton on the Law of Torts § 124 at 929 (5th ed.1984).

In 1959, our legislature abolished breach of promise suits by enacting ch. 248 (now ch. 768), Stats. A Legislative Counsel note declared: "The action for breach of promise encourages marriages that should not take place and its abolishment is in keeping with the philosophy that legislation should be designed to promote stability in marriage. As a remedy which permits monetary recory [sic] the action sanctions conduct that borders on extortion." V General Report, Wisconsin Legislative Council, Bill No. 151A, at 67 (1959). Pursuant to the enactment of this chapter "no award of damages for breach of contract to marry can be made or sustained." Slawek v. Stroh, 62 Wis.2d 295, 310, 215 N.W.2d 9, 18 (1974).

A question remained, however, as to the intended scope of this statutory abolition of common law rights. In Lambert v. State, 73 Wis.2d 590, 600-01, 243 N.W.2d 524, 529 (1976), the supreme court concluded: "In abolishing the action for breach of contract to marry, it is apparent that the legislature intended to abolish only the common -law suit for damages based on the emotional harm caused by the breach."

The trial court's analysis of the legislative intent behind ch. 768, Stats., is contrary to that of the Lambert court. The trial court construed ch. 768 to abolish all common law suits related to breach of contract to marry, except for actions based on fraud, sec. 768.06, and stated: "One would assume that if the legislature had intended to accept [sic] conditional gifts or engagement gifts from the purview of Chapter 768 it would have so indicated." We are not persuaded.

The language of sec. 768.06, Stats., does not imply the exclusive remedy suggested by the trial court. It simply provides that "[a]ctions for the recovery of property ... procured by ... fraud ... are not barred by this chapter...." To transform this negatively-phrased statute into an exclusive remedy is to violate a cardinal rule of statutory construction: rules of the common law are not to be changed by doubtful implication. State v. Klein, 25 Wis.2d 394, 401, 130 N.W.2d 816, 820 (1964), cert. denied, 380 U.S. 951, 85 S.Ct. 1083, 13 L.Ed.2d 969 (1965). See Comment, Abolition of Breach of Promise in Wisconsin--Scope and Constitutionality, 43 Marq.L.Rev. 341, 353 (1959) ("It is doubtful construction to imply a legislative purpose to allow an unjust enrichment, merely because fraud cannot be proven.")

Additionally, the sweeping construction applied by the trial court would not further the stated legislative purpose of ch. 768 to prevent extortionary conduct. Thomas asserts that if a donor is allowed to seek recovery "it may encourage the donee to proceed with the marriage, when it would not otherwise be advisable, simply to retain the ring." We decline to endorse this pessimistic and mercenary assessment of contemporary courtship conduct, particularly since there is no basis for it in the statute's legislative history or even the facts of record in this case.

Finally, we consider the feasibility of an alternative statutory construction that would effectuate the legislative purpose while retaining a fundamental right guaranteed by our state constitution. Article I, § 9, of the Wisconsin Constitution provides in part: "Every person is entitled to a certain remedy in the laws for all injuries, or wrongs which he may receive in his person, property, or character...." The "certain remedy" Brown seeks here is the recovery of an engagement ring, not damages for emotional harm. Although it appears that his suit is one of first impression in Wisconsin, there is sufficient precedent in our case law, as well as the decided weight of authority in other jurisdictions, to recognize the inherent validity of his claim.

Most jurisdictions recognize the rule that an engagement gift made in contemplation of marriage is conditional upon a subsequent ceremonial marriage. Piccininni v. Hajus, 180 Conn. 369, 429 A.2d 886, 888 (1980); see Annot., 46 A.L.R.3d 578, § 3 at 584. To invoke the picturesque metaphor of Justice Musmanno in Pavlicic v. Vogtsberger, 390 Pa. 502, 136 A.2d 127, 130 (1957):

A gift given by a man to a woman on condition that she embark on the sea of matrimony with him is no different from a gift based on the condition that the donee sail on any other sea. If, after receiving the provisional gift, the donee refuses to leave the harbor,--if the anchor of contractual performance sticks in the sands of irresolution and procrastination--the gift must be restored to the donor.

Wisconsin, too, has long acknowledged the...