Hanson v. Johnson

• Decision Date: 01 February 1910
• Citation: Hanson v. Johnson, 141 Wis. 550, 124 N.W. 506 (Wis. 1910)
• Parties: HANSON v. JOHNSON.
• Court: Wisconsin Supreme Court

141 Wis. 550

124 N.W. 506

HANSON

v.JOHNSON.

Supreme Court of Wisconsin.

Feb. 1, 1910.

Appeal from Circuit Court, Pierce County; E. W. Helms, Judge.

Action by Eliza Hanson against Andrew Johnson. From a judgment for plaintiff, defendant appeals. Affirmed.Thos. M. Casey and White & Skogmo, for appellant.

George Thompson (Arctander, Johnson & Berg, of counsel), for respondent.

TIMLIN, J.

The plaintiff in this action for breach of promise of marriage pleaded in aggravation of damages her seduction by defendant under such promise. This was met by a general denial. According to the testimony of the plaintiff she became acquainted with the defendant in the year 1895, and soon thereafter there was a marriage engagement entered into between them, and, relying upon this engagement, at the solicitation of defendant, she yielded to sexual intercourse, which continued thereafter for 13 or 14 years, when defendant breached his promise to marry. Defendant admitted this intercourse, but testified that there never was at any time a promise of marriage. There was a special verdict, complete in other respects, but which contained no finding covering the fact of seduction. The defendant requested that the court submit to the jury the following question: “Did plaintiff and defendant have sexual intercourse with each other prior to any promise of marriage between them?” The court refused to submit this question, and charged the jury concerning this matter as follows: “The only bearing such evidence has in this case is to enhance the damages, if any, arising from such breach of promise to marry.” “In order to find that plaintiff was seduced by defendant, you must find from a preponderance of the evidence that said plaintiff had not intercourse with the defendant prior to the time of such promise of marriage, and that she consented to such act of intercourse solely by reason of such promise of marriage, and that she would not have consented to and had intercourse with the defendant if it had not been for such promise of marriage, if you find such was made at the time of such act of intercourse.” While not literally accurate, this instruction presented the question to the jury in a manner sufficiently favorable to the appellant, if we regard merely the instruction. It has been ruled by this court that where an issuable material fact is averred in the complaint and controverted by the answer, a defendant, who has by compliance with the statute entitled himself to a special verdict, may insist upon a question in the special verdict calling for a finding upon such fact if he made proper and timely request therefor (Rowley v. Chi., M. & St. P. R. Co., 135 Wis. 208, 115 N. W. 865;Bredlau v. York, 115 Wis. 554, 92 N. W. 261), but not then if there is no evidence to support the finding so requested (Reed v. Madison, 85 Wis. 667, 56 N. W. 182); nor where there is a mere scintilla of evidence with overwhelming evidence to the contrary (Hogan v. Cushing, 49 Wis. 169, 5 N. W. 490). Assuming, for the purposes of this discussion, that in the instant case defendant was otherwise entitled to have this question submitted to the jury, there is, we think, no evidence which would support an answer to such question favorable to appellant. The evidence on this point is confined to the testimony of plaintiff and defendant.

Plaintiff testifies that she first became acquainted with the defendant in March or April, 1895, at a boarding house where he was a boarder and she a servant, and that she saw him every day, and that he was accustomed to come upstairs where she was at work. At an interview upstairs at the boarding house, and two or three months after their first acquaintance, the engagement of marriage took place, and she had more than one conversation with the defendant concerning marriage before his visit to Dakota, which is definitely fixed as August, 1895. She testifies that the first act of sexual intercourse took place quite awhile after this engagement. The defendant met this by his testimony, which closely follows that of plaintiff as to time. He first met her at this boarding house in the spring of 1895. He had seen her “a month or so” before he “first went out with her.” The first time he went out with her was in June, 1895. The second time he went out with her there was sexual intercourse. There was never at any time any promise of marriage. It will be observed that he does not fix the time of this first act of sexual intercourse, except that it was after some day in June, 1895, and that it was the second time he went out with her. His version of the occurrence is that there never was at any time a promise of marriage. The plaintiff charged him by her testimony with a promise made at the boarding house before this first act of intercourse. In order to find a promise of marriage (and this question was submitted to the jury) the jury must believe the plaintiff. The requested question assumes that there had been a promise of marriage. Would it not be the merest guess on the part of the jury to say from the foregoing evidence of defendant, and against the positive evidence of plaintiff, that there was a promise of marriage, but that the first act of sexual intercourse antedated this promise? Upon what could such finding rest? The defendant does not give any date or fix any time for the act, nor any date from which the jury could compute time, except it was after a day in June. We think there was no sufficient evidence to warrant the submission of the question as proposed to the jury. At least it can be said that the appellant was not prejudiced by the refusal of this question, for it is highly improbable that any tribunal for the trial of questions of fact would have answered the question in his favor upon the evidence in this case, and the court fully instructed the jury concerning the legal effect of the fact of seduction, and the necessity of being convinced that such seduction...