Dent v. Pickens.
| Decision Date | 28 November 1890 |
| Citation | 34 W.Va. 240 |
| Parties | Dent v. Pickens. |
| Court | West Virginia Supreme Court |
Breach of Promise of Marriage Evidence.
In an action for breach of marriage promise, testimony that the defendant after engaging himself to the plaintiff seduced her, may be given in evidence as proof of a violation of the engagement, whether specifically averred in the declaration or not.
2. Breach of Promise of Marriage Evidence.
In such an action, evidence of the pecuniary circumstances of the defendant when the breach occurred, or during the time when he might reasonably have been expected to fulfill his engagement, is admissible.
3. Breach of Promise of Marriage Evidence.
No evidence of any fact having a tendency to aggravate the damages, which has occurred since the commencement of the action, should, as a general rule, be admitted.
4. Breach of Promise of Marriage Evidence.
Where illegal evidence is admitted against the objection of a party, it will be cause for setting aside the verdict, unless it clearly appear that the objecting party was not prejudiced thereby.
J. J. Davis, J. Bassell and Dayton &Dayton for appellant cited:
2 Greenl. Ev. §§ 253, 256; 48 Ind. 562; 37 Wis. 46; 11 Pa. St. 321; 75 Ind. 417; 2 Pa. St. 80; 3 Bibb 341; 1 P. I. 493; 32 W. Va. 45; 30 N Y. 285; 31 Ark. 685; 2 Am. & Eng. Ency. Law 527; 1 Camp. 460; 31 Barb. 273; 24 Pa. St. 408.
J. H. Woods and S. V. Woods for appellee cited: 2 Chitt. PI. 322; 1 Rob. Forms 520; 4 Min. Inst. Ft. II, 1399; 18 W. Va. 1; 3 Suth. Dam. 316, 317, 323, 326; 3 Am. Pep. 147; Acts 1882, c. 120, s. 6; 48 Ind. 562; 2 Par. Cont. 70; 102 Mass. 395; 33 Md. 288; 30 N. Y. 285; 10 1ST. W. Rep. 598; 9 S. W. Rep. 788; 4 I, f. Rep. 8; 8 Am. Rep. 336; 22 W. Va. 253; 32 W. Va. 41; 40 Am. Rep. 275; Sedg. Dam. 544; 33 Gratt. 725; 40 la. 615; 13 Allen 144; 4 Min. Inst. P't I, 291, 292; 7 Cow. 22; 1 Johns. Cas. 16; 22 W. Va. 764; 15 W. Va. 804.
Lucas, President:
This was an action "of assumpsit for breach of marriage promise brought by the plaintiff in the Circuit Court of Barbour county. The jury found for the plaintiff, and awarded her damages to the amount of ten thousand dollars. The defendant moved to set aside the verdict and for a new trial, but the court overruled his motion and gave judgment against him in accordance with the finding of the jury. Nine bills of exceptions were reserved during the trial, involving sundry interesting questions of law, which we will now proceed to consider.
The first assignment of error in this case is that the Circuit Court overruled the demurrer to the declaration. No defect in the declaration, which seems to he in the usual form, has been pointed out in the petition or brief of counsel, and I see no valid objection to its sufficiency.
The second objection to the action of the Circuit Court, which I shall notice, is the admission of evidence proving the seduction of the plaintiff by the defendant, nothing of the kind having been alleged in the declaration. Upon the question, that in an action for breach of promise seduction, when averred in the declaration, may be proved, this Court has already decided. McKinsey v. Squires, 32 W. Va. 41 (9 S. E. Rep. 55). In that case, however, the seduction was distinctly averred in the complaint. The more difficult question is whether such proof can be admitted, where there has been no such averment. Upon this question there is a conflict of authorities. Those who hold such averment a necessary prerequisite go upon the well-settled doctrine that two causes of action can not be combined and prosecuted in one suit, and that any special circumstance in aggravation of damages should be alleged in the declaration. The other and weightier class of authorities proceed upon the idea, that, when a contract for future marriage has been entered into, the relation between the parties is in the nature of a trust, and that the seduction of the female, while thus engaged, is in itself a breach of the promise of marriage, which is held to embrace on obligation and undertaking to protect and respect until the marriage is lawfully consummated; hence the evidence of seduction is admitted (whether directly averred or not in the declaration) as proof of the violation of his promise by the defendant. See 3 Suth. Dam. pp. 316, 317; 2 Sedg. Dam. 147, and notes.
Various exceptions were taken upon the trial to the admission of certain testimony as to the pecuniary condition or wealth of the defendant. That offered upon this subject by the plaintiff all tended to prove the estate of the defendant at the time of his breach of promise, or during the time when he might reasonably have been expected to ful- fill it. Although some of it consisted of instruments executed after suit was instituted, yet those instruments contained admissions by the defendant, who executed them, throwing light upon his pecuniary condition during the period named and before suit. Such testimony is admissible for the purpose of showing the loss which the plaintiff lias sustained by the non-fulfillment of the contract. The jury should take into consideration the rank and condition of the parties, and the pecuniary standing of the defendant, as tending to illustrate the advantage which the plaintiff would have secured by the marriage. See Riddle v. McGin- nis, 22 W. Va. 253; 3 Suth. Dam.323; Clem v. Holmes, 33 Gratt. 726. The general rule, however, in all such cases, is that no evidence can be given of any fact having a tendency to aggravate or diminish the damages, which...
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