Freed v. Carlson
| Decision Date | 20 November 1923 |
| Docket Number | No. 35300.,35300. |
| Citation | 196 Iowa 961,195 N.W. 723 |
| Parties | FREED v. CARLSON. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Webster County; H. E. Fry, Judge.
Action to recover damages for the breach of a promise of marriage, with a plea of seduction in aggravation of damages. Verdict and judgment for plaintiff, and defendant appeals. Affirmed.Mitchell & Files, of Ft. Dodge, for appellant.
Healy & Breen and Healy, Thomas & Healy, all of Ft. Dodge, for appellee.
[1] Insufficiency of the evidence to sustain a verdict in appellee's favor is not made a ground for reversal. All of the propositions relied upon for reversal are based upon alleged errors committed by the court in its charge to the jury. Although appellee's cause of action is alleged in one ground of the petition which was amended before and again at the time of the trial, the court required her to elect whether she would proceed upon the allegations of seduction only or upon her cause of action for the alleged breach of promise of marriage with seduction as aggravation of damages. She elected to stand upon the latter, and the cause was so submitted to the jury. Appellee's previous chaste character was not alleged in the original petition, but it was alleged in the amendment tendered at the conclusion of all the testimony for the purpose of conforming the pleadings to the proof. Appellant moved to strike this amendment upon the ground that it was filed too late and that it introduced a new issue. The motion was overruled. We think the ruling was correct.
Appellee testified that she never had sexual intercourse with any one but appellant. This testimony is offset, if at all, only by the testimony of several witnesses introduced by appellant to the effect that appellee told, and listened to, vulgar stories, used some profanity and upon one occasion suggested to a young man that she would “strip off” if he would. All of this testimony is denied by her. There was no abuse of the court's discretion in permitting the amendment to be filed.
[2] II. The only reference in the instructions to the subject of appellee's previous chastity is in the statement of the issues. The instructions do not define or otherwise refer to the term “previous chaste character.” Appellant requested an instruction, in effect, withdrawing this issue from the jury. The request was refused by the court. This ruling is one of the grounds relied upon for reversal. The requested instruction is not based upon the evidence, and could not have been properly allowed. The elements necessary to appellee's recovery, and which she was required to prove by a preponderance of the evidence, were clearly and succinctly stated by the court in substance as follows: (1) The alleged agreement of marriage; (2) the breach thereof by appellant; and (3) that appellee was damaged thereby. It is true the court did not define the term “previous chaste character,” nor was any request made for an instruction to that effect. The jury was instructed that, unless the alleged agreement of marriage and the breach thereof by appellant were shown by the greater weight of the evidence appellee could not recover, notwithstanding the charge of seduction might be proven. The only consideration the jury, under the instructions, was permitted to give the subject of appellee's seduction was in aggravation of damages. That the issue of appellee's seduction had considerable weight with the jury may be readily conceded. The evidence tended to show that appellant kept company with appellee for several months; that he secured her confidence and seduced her under repeated promises of marriage. She became pregnant and gave birth to a child. The truth of appellee's testimony is attested in large part by the admitted conduct of appellant. The jury had a right to take the issue of appellee's seduction into consideration in fixing the recovery to be awarded. The ruling complained of was proper.
[3] III. The court, in enumerating the various matters to be considered by the jury in fixing appellee's recovery for a breach of the alleged contract to marry, used the word “disgrace.” The connection in which this word was used had no reference to the previous chaste character of appellee. The elements stated are those usually enumerated in an instruction upon the measure of damages in breach of promise actions. Immediately following the enumeration of the several elements to be taken into consideration in fixing damages for the breach of the contract of marriage, the court said:
“And if you further find that by reason of defendant's promise to marry the plaintiff, if there was such promise, and by other seductive means employed, if any, he seduced the plaintiff, and that thereby she became pregnant, you should, in estimating her damages take these facts into due consideration in aggravation of damages as tending to increase the humiliation, grief, shame, and distress, if...
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