Goodal v. Thurman

• Decision Date: 31 December 1858
• Citation: 38 Tenn. 209
• Parties: CHARLES J. GOODAL v. LAVINA THURMAN.
• Court: Tennessee Supreme Court

38 Tenn. 209

CHARLES J. GOODAL

v.LAVINA THURMAN.

Supreme Court of Tennessee.

December Term, 1858.

FROM SUMNER.

Verdict and judgment at the October term, 1858, for $5,000. Motion for new trial overruled, Turner, J., presiding. The defendant appealed.

Head & Turner, and Bennett, for the plaintiff in error; J. J. White, for the plaintiff in error, argued:

1. The damages are excessive. It will not do, in our sympathies for the sex, to make no distinction between women, and to place the impure and vicious upon a level with the purest and most exalted. The proof shows, that if the defendant in error was not actually a courtesan, her conduct was such as to invite improper approaches; and that it was so doubtful, both in regard to the contract of marriage and the paternity of the child, it was not a case for exemplary damages.

2. The court erred in the charge to the jury. He first supposes a case without evidence to support it, which is, in effect, an inflammatory appeal to the jury. But, 2d, according to a high authority, (2 Greenl. on Ev. sec. 256,) the damages to be recovered must always be the natural and proximate consequence of the act complained of. He says, “it has been held, that in assumpsit for breach of a promise to marry, evidence of seduction is not admissible in aggravation of damages,” and quotes several authorities. It is true, in 2 Tenn. 234, the law is intimated differently; but the authority in Greenleaf would seem to be right upon principle, for this seduction and illicit intercourse does not naturally flow from a promise to marry, but it is an independent, vicious act on the part of both. The law makes the father responsible for the support of the child; but it does not intend to pay her on that account. To do so would be to encourage licentiousness and reward vice. Hence it is that the mere fact of a female having an illegitimate child affords her no ground for an action. To couple it then with another matter which does, as a breach of promise to marry, cannot change the principle in her favor. 2 Bibb, 341, Barkes v. Shain.

We think the court likewise erred in telling the jury to “inquire not what defendant can pay, but what the plaintiff ought to receive.” If the defendant had a large estate, that might be shown to increase the damages. If he is worth nothing, would not that diminish them?

The importance and novelty of the case are reasons for granting a new trial, as said by the court in the case of Abbott v. Seaber, 3 Johns. Cas. 39. Suits of this kind have been rarely brought in this State, and, therefore, the law has not been well considered here in regard to them.

Guild, for the defendant in error; Baxter Smith, for the defendant in error, said:

It is insisted by the plaintiff in error, that a new trial should have been granted him upon the ground that James Gwin, a member of the jury was connected by affinity to the defendant in error, within the degree that would render him incompetent as a juror, computing according to the rule of the civil law. This might have been urged as an objection to the juror's competency when he was first called, but as no such objection was then made, and the question of his relationship was not put to him, it is too late to rely upon this ground for a new trial after the verdict has been rendered. It is submitted, that a presumption legitimately arises, as nothing was said about it when the jury was made up, that the objection to the competency of this juror was waived, if any existed, or that the parties consented that the juror might act. The act of Assembly declaring persons related within the sixth degree, by affinity or consanguinity, incompetent to act as jurors in any case, provides that the parties to the suit may waive any objection to such incompetency. Code, sec. 4003. If any such connection ever existed between the defendant in error and this juror, as to render the latter incompetent to set as a juror in the case of the former, we contend that such connection had been broken by the death of the juror's wife, and his subsequent marriage. The reason of the rule in such case ceases then to exist, for in a majority of cases, as the experience of the world goes, a party's feelings are more likely to be adverse than too partial to his or her connections by a former marriage. This objection is certainly a “nice and formal one, which does not go to the real merits of the case,” and for such, a new trial will not be granted. Bla. Com. B., 3 marg. p. 392.

2. There is no error in the charge of the court. In an action for a breach of a promise of marriage, evidence may be given of the defendant's impregnating the woman, in aggravation of damages. 2 Tenn. 233.

3. This being a civil action for damages, the court will not disturb the verdict of the jury on the ground of excessive damages, unless they are “flagrantly outrageous and extravagant, evincing intemperance, passion, partiality or corruption, such as all mankind would at once pronounce unreasonable.” Boyers v. Pratt, 1 Humph. 93. It will scarcely be contended that the damages in this case evince any such conduct or feelings upon the part of the jury.

The damages are within the sound discretion of the jury, under the circumstances of each particular case. Southard v. Rexford, 6 Cow. 254.

Can it be, that the poor are not as chaste as the rich?

Caruthers, J., delivered the opinion of the court.

This action was for a breach of a contract to marry, and the recovery was for $5,000 damages.

It is insisted that the damages are excessive, and so we think; but whether to that extent which would, under the rules on that subject authorize us to reverse on that ground alone, is a different question. There are some cases in which the engagement to marry is used for the basest purposes, by unprincipled men, and in these, the damages cannot well be too heavy. In this case, proof was admitted tending to show that the defendant succeeded in the seduction of the plaintiff by the confidence inspired in that way. She was certainly delivered of an illegitimate child, which she charges upon him, and insists that she was induced to surrender her virtue in consequence of his reiterated assurances, that he would comply with his contract to marry her. This is the position assumed in the argument upon the circumstances proved.

But a question of law is here made, as to the admissibility of evidence of seduction in a suit for breach of a contract to marry. The court below admitted it, in aggravation of damages. To show this was error, we are referred to a passage in 2 Greenl. on...