Geiger v. Payne

• Decision Date: 11 December 1896
• Parties: GEIGER v. PAYNE.
• Court: Iowa Supreme Court

102 Iowa 581

69 N.W. 554

GEIGER

v.PAYNE.

Supreme Court of Iowa.

Dec. 11, 1896.

Appeal from district court, Ringgold county; H. M. Towner, Judge.

Action for breach of promise to marry. Verdict and judgment for plaintiff, and the defendant appealed. Affirmed.McIntire Bros. & Jamison and Reynard Bros., for appellant.

Henry & Spence, E. W. Curry, and A. B. Cummins, for appellee.

GRANGER, J.

1. To the petition there was a substituted answer in five divisions. A demurrer was filed to all except the first division, and sustained as to the third, fourth, and fifth divisions, and the parties are in dispute as to whether it was sustained as to the second division; and, as we view the record, it is not important that we settle the dispute. That there is danger of misapprehension from the record is true, for there are no less than seven abstracts filed, and in some respects they obscure rather than make clear disputed questions. Error is assigned on the ruling of the court in sustaining a demurrer to the answer, and counsel are in contention as to what can be considered under the assignment. After the ruling on the demurrer to the substituted answer, as above stated, which was on April 26, 1895, it appears that, on the same day, defendant filed an amendment to the fourth and fifth divisions of his substituted answer, and immediately following the amendment, in the abstract of appellant, is the following: “And, on the _____ day of April, the court, being fully advised in the premises, sustains the plaintiff's demurrer to defendant's substituted answer as amended, to which ruling the defendant at the time duly excepted.” It next appears that on the 1st day of May, 1895, the defendant amended the fourth division of his substituted answer, and the first division of his amendment to the substituted answer, by stating that the matters and things therein set up are pleaded in mitigation of damages. To the answer a reply was filed, and the pleadings thus made seem to have presented the issues of fact afterwards tried.

The questions argued on demurrer are as to the rulings on the demurrer to the substituted answer. The demurrer to the “substituted answer as amended” is not set out, and it seems to have been to the entire answer, from the language of the abstract; and it was sustained. Of course, we cannot consider it, for we do not know what it is, and no question seems to be presented as to it. The ruling held the entire answer insufficient. The amendment following made good the first and fourth divisions of it, to which there is a reply. Such a state of the record waives, or renders it unnecessary to pass on, the ruling of the court on the demurrer to the substituted answer. The substituted answer, with the amendment thereto, supplanted, for the purpose of forming issues, the original substitute, as it was assailed by demurrer; and the last ruling on demurrer became the conclusive one on the sufficiency of the answer. Some phases of the argument lead us to think that neither party takes our view of the effect of the record. The condition of the record, as we have stated it, is taken from the abstracts of both parties; and, if we are right as to the record, we think there is little doubt of the correctness of our conclusion.

2. The petition, in addition to the averments as to a promise of marriage, and a breach thereof, shows the fact of sexual intercourse between the parties, and it is averred “that said seduction and sexual intercourse was brought about and accomplished by said defendant under and by virtue of said contract of marriage. The plaintiff, relying upon said contract of marriage as herein set out, yielded up her virtue to said defendant, and was, on account thereof, seduced by him.” Defendant moved the court to require the plaintiff to separate the causes of action into counts, so as to present separate claims for the breach of promise, and for the seduction, which the court refused. It is plaintiff's claim that only a cause of action for breach of promise is pleaded, and that the fact as to seduction is only in aggravation of damages, and this is the view taken by the district court in its ruling and instructions. Appellant contends that, although the fact of seduction may be used for the purpose of corroboration in a case for breach of promise, it cannot be used to aggravate the damage. The authorities are not in entire harmony on the subject, but they largely preponderate in favor of the court's ruling. Mr. Hale, in his late work on Damages, in the chapter on “Breach of Marriage Promise,” says: “In estimating the damages, the jury may take into account the fact that plaintiff had been seduced by defendant, as tending to increase the mortification and distress suffered by her. If by reason of an imprudent and criminal act, in which both participated, she is brought to such a state that the suffering occasioned to her feelings and affections must necessarily be increased by his abandonment, then that would be but an inadequate and poor compensation which did not take it into account. The seduction must have been accomplished by means of the promise of marriage.” The text is supported by numerous authorities. It will be seen that the allegations of petition, as we have quoted them, show that the seduction was accomplished relying on the promise of marriage. In Bennett v. Beam (Mich.) 4 N. W. 8, is the following language: “That the act of seduction under a promise of marriage should go a great ways with the jury in estimating the damages ought to be true, both in law and fact. In many cases, loss sustained from a breach of the agreement to marry may be but slight, indeed, but never can this be the case where the lifelong blight which seduction entails enters into the case. Respectable society inflicts upon the unfortunate female a severe punishment for her too confiding indiscretion; and which the marriage would largely, if not wholly, have relieved her from. The fact of seduction should, therefore, go a great ways in fixing the damages, as in no other way could amends be made the plaintiff for the injury she sustained, or the defendant be properly punished for his aggregated offenses. It would seem also to be in full accord with the sense of justice implanted in the heart of every high-minded person, and therefore with the reason of the common law.” The case cites Sheahan v. Barry, 27 Mich. 217. See, also, Bird v. Thompson (Mo. Sup.) 9 S. W. 788;Daggett v. Wallace (Tex. Sup.) 13 S. W. 49;Tyler v. Salley (Me.) 19 Atl. 107;Osmun v. Winters (Or.) 35 Pac. 250. In 2 Am. & Eng. Enc. Law, under the proper subject, it is said: “In aggravation of damages, it may be proved in some states, if it is alleged in the complaint, that, by means of his promise, the defendant seduced her.” Some twelve states are cited as sustaining the rule. It is also stated in the text that “in other states, on the ground that the plaintiff must have been a particeps criminis to the seduction, and therefore could not complain of it, the jury cannot consider it.” Three states are cited as sustaining this rule. Both upon reason and authority, we concur in the rule of permitting such a fact to be shown in aggravation of the damage.

3. The cause was tried at the April term, 1895, at which term a motion for a continuance filed by defendant was overruled, of which ruling complaint is made. The grounds of the motions are that but a short time before the term, about a week, one M. A. Campbell, who had been the attorney for defendant for many years, and who had almost the exclusive management of this case, died, leaving the responsibility to associate counsel. A counter showing makes it appear that the cause had been some three times continued at the instance of defendant, and that the sickness of Mr. Campbell had been of such a nature, and for such a time, that reliance should not have been placed on his ability to be able to take charge of the trial at the April term. It is clearly a case in which there was no abuse of discretion. In fact, we think it was judiciously exercised.

4. One John N. Brown was a member of the regular panel of jurors, and was excused for cause on a challenge by plaintiff, and erroris assigned on the ruling. The most direct claim of prejudice because of the exclusion of the juror is that it necessitated calling a juror from the bystanders to complete the trial panel; but there is nothing to show that the juror so called was not acceptable and a good juror for the purposes of the trial. The examination showed that a daughter of the excused juror had married a relative of the defendant, and that the juror and the son-in-law had talked about the case, and, upon the whole, the court concluded to excuse him, and we think it not an unfair exercise of discretion. Even if it would not have been error to overrule the challenge, still we should not interfere, in the absence of a showing of prejudice. Sprague v. Atlee, 81 Iowa, 1, 46 N. W. 756.

5. It appears that defendant was a widower, residing at Mt. Ayr, in this state, and that the plaintiff was a lady some 28 years of age, who came to Mt. Ayr from Newark, Ohio, and had resided there since early in 1892. The last of February, 1893, she returned to Newark, Ohio. Before leaving Mt. Ayr, she met with the defendant, and a correspondence was talked of, and afterwards had; and the letters from the defendant are, in part, in evidence. The correspondence resulted in the parties meeting at Chicago, at the World's Fair, and later, in June, 1893, defendant visited plaintiff at her home, in Ohio. It is plaintiff's claim that the marriage was talked of in Chicago, and the agreement fully completed when the defendant visited her in Ohio; and it is her further claim that her seduction was...